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THE  SUPREME  COURT  AND 
UNCONSTITUTIONAL    LEGISLATION 


BY 


ELAINE  FEEE  MOOEE,  A.  M. 

Assistant  Professor  Political  Science,  George  Washington  University 
Sometime  Curtis  Fellow  in  Columbia  University 


SUBMITTED   IN   PARTIAL    FULFILMENT   OF   THE   REQUIREMENTS 

FOR   THE   DEGREE   OF   DOCTOR   OF   PHILOSOPHY 

IN  THE 

FACULTY  OF  POLITICAL  SCIENCE 
IN  COLUMBIA  UNIVERSITY 


NEW  YORK 
1913 


THE  SUPREME  COURT  AND 
UNCONSTITUTIONAL    LEGISLATION 


BY 

BLAINE  FREE  MOORE,  A.  M. 

Assistant  Professor  Political  Science,  George  Washington  University 
Sometime  Curtis  Fellow  in  Columbia  University 


SUBMITTED   IN   PARTIAL    FULFILMENT    OF   THE    REQUIREMENTS 

FOR    THE    DEGREE   OF    DOCTOR   OF    PHILOSOPHY 

IN  THE 

FACULTY  OF  POLITICAL  SCIENCE 
IN  COLUMBIA  UNIVERSITY 


NEW  YORK 
1913 


COPYRIGHT,  1913 

BY 
ELAINE  FREE  MOORE 


PREFACE 


ALTHOUGH  discussion  of  the  unique  position  of  the 
courts  in  this  country  has  not  been  confined  to  recent 
times,  probably  never  before  has  the  question  reached 
such  an  acute  stage  as  at  present,  nor  given  rise  to  so 
much  serious  discussion  as  to  the  advisability  of  limiting 
some  of  the  more  important  powers  of  the  judiciary. 
An  awakening  consciousness  of  our  social,  economic 
and  political  defects  and  a  growing  belief  that  these  can 
be  lessened  by  increased  governmental  action  has  led  to 
various  reformatory  measures  on  the  part  of  the  legisla- 
tive and  administrative  branches.  Whether  wisely  or  un- 
wisely we  are  not  here  discussing,  but  the  fact  remains  that 
the  courts,  in  some  instances,  have  checked  these  legisla- 
tive and  administrative  activities  through  their  power  to 
declare  statutes  and  ordinances  unconstitutional  and 
hence  null  and  void.  This  action  on  the  part  of  the 
judiciary  has  caused  wide-spread  comment  and  led  to 
proposals  to  limit,  by  various  means,  this  power  of  the 
courts.  In  studying  this  question  the  author  was  struck 
with  the  fact  that,  although  the  courts  are  held  responsi- 
ble for  many  acts  both  wise  and  unwise,  and  individual 
cases  are  cited  to  prove  the  contentions  set  forth,  yet  no 
systematic  attempt  has  been  made  to  ascertain  what  as  a 
whole  the  judiciary  has  accomplished  by  its  power  to 
declare  statutes  unconstitutional.  It  was  to  supply  this 
omission  that  this  study  in  one  branch  of  the  subject 
was  undertaken. 

99]  5 


263730 


I 


6  PREFACE  [j 

In  the  text,  though  state  cases  have  been  discussi 
an  analysis  has  been  made  only  of  the  federal  statut 
held  void  by  the  Supreme  Court,  but  in  the  appendices 
an  attempt  has  been  made  to  list  all  cases  in  which 
state  enactments  were  declared  unconstitutional,  by  the 
same  court,  because  of  conflict  with  the  federal  con- 
stitution. It  has  been  found  very  difficult  to  compile 
even  an  approximately  correct  list.  Not  only  are  the 
cases  in  question  scattered  among  a  large  number  of 
others,  but  additional  difficulties  were  encountered.  In 
some  instances  the  information  given  in  the  official  re- 
ports is  scarcely  sufficient  to  determine  with  exactness 
whether  a  statute  has  been  annulled,  or  whether  only  an 
interpretation  of  it  has  been  given.  In  other  cases  a 
statute  has  not  been  held  void  in  words,  but  the  judgment 
is  in  opposition  to  the  statute  and  the  result  is  to  de- 
stroy the  force  of  the  act.  In  a  considerable  number  of 
cases  the  act  directly  complained  of  and  checked  was 
that  of  an  administrative  body,  but  as  in  the  majority  of 
instances  the  state  courts  had  previously  held  that  such 
action  was  authorized  by  law,  the  conclusion  is  that  a 
statute  was  in  whole  or  in  part  held  void.  Also  in  vari- 
ous of  the  cases  listed  statutes  were  held  to  be  void  only 
as  they  applied  to  particular  facts  or  a  particular  set  of 
facts.  In  all  instances,  however,  the  activities  of  a  state 
were  checked,  (which  is  really  the  important  fact),  be- 
cause of  conflict  with  the  federal  constitution,  though  in 
some  few  cases  possibly  a  statute  was  not  technically 
annulled.  The  list  given  may  serve  as  a  basis,  and  later 
investigations  may  correct  any  errors  of  omission  or 
commission.  The  list  has,  however,  been  carefully 
checked,  and,  within  the  limits  set  forth  above,  an  attempt 
has  been  made  to  have  it  as  accurate  as  possible. 

The  author  is  indebted  to  Professor  C.  A.  Beard  who 


}I]  PREFACE  7 

is  kindly  read  the  manuscript  and  made  many  helpful 
-iggestions ;  also  to  Miss  Katherine  S.  Summy  for  aid 
in  reading  proof  and   revising  it  for  publication.     The 
author's  thanks  are  especially  due  Professor  F.  J.  Good- 
now,  both  for  his  careful  reading  and  corrections  of  the 
manuscript,  and  for  many  valuable  suggestions  and  criti- 
cisms made  throughout  the  preparation  of  the  work. 
WASHINGTON,  D.  C.,  January,  1913. 


TABLE  OF  CONTENTS 


CHAPTER  I 

EARLY  ATTITUDE   OF  THE  STATE   COURTS  TOWARDS   DECLARING 
LEGISLATION  UNCONSTITUTIONAL 


ii 


CHAPTER  II 

ATTITUDE    OF    THE    SUPREME   COURT    OF   THE   UNITED   STATES 
TOWARDS  HOLDING  STATUTES  UNCONSTITUTIONAL 35 

CHAPTER  III 

ANALYSIS  OF  THE  FEDERAL  STATUTES  HELD  VOID  BY  THE  SUPREME 
COURT  OF  THE  UNITED  STATES    ....  77 


APPENDICES 

APPENDIX  I.  Table  of  Cases  in  which  National  Legislation  has 
been  Declared  Contrary  to  the  Constitution  by 
the  Supreme  Court  of  the  United  States  ....  129 

APPENDIX    II.  Chronological  Table  of  Cases  in  which  State  Legis- 
lation has  been  Declared  Contrary  to  the  National 
Constitution  by  the  United  States  Supreme  Court.  131 
Statistical  Summary  of   Unconstitutional  Legisla- 


APPENDIX  III. 
APPENDIX  IV. 


tion 


139 


Cases  in  which  State  Legislation  has  been  Held 
Void  by  the  United  States  Supreme  Court  Classi- 
fied by  States 142 

APPENDIX  V.  State  Legislation  Held  Void  by  the  United  States 
Supreme  Court  Classified  according  to  the  Con- 
stitutional Clauses  with  which  the  Legislation 

Conflicted 151 

103]  9 


CHAPTER  I 

EARLY  ATTITUDE  OF  THE  STATE  COURTS  TOWARDS 
DECLARING  LEGISLATION  UNCONSTITUTIONAL. 

THE  doctrine  that  the  courts  can  declare  what  is  or  is 
not  law  for  the  other  co-ordinate  departments  of  the 
government  in  cases  coming  before  them  in  the  exercise 
of  their  ordinary  jurisdiction ;  that  the  courts  can  check 
the  activities  of  the  legislative  branch  of  the  government 
in  instances  where  that  will  is  determined  by  them  to 
conflict  with  the  fundamental  written  law, — all  this  has 
been  so  well  settled  in  this  country  that  until  recently, 


perhaps  even  now — questioning  that  power  or  doubting 
the  legitimacy  of  its  origin  has  been  regarded  as  almost 
sacrilegious.  The  firm  position  which  this  doctrine  as- 
sumed in  so  short  a  time  after  it  was  definitely  affirmed 
by  the  Supreme  Court  of  the  United  States  is  a  truly 
remarkable  phenomenon. 

The  origin  and  growth  of  this  immensely  important 
idea  in  government  has  been  traced  by  a  few  authors.1 
There  may  be  some  doubt  as  to  just  when  and  where 
the  idea  first  appears,  but  it  is  quite  certain  that  it  was 
fairly  well  known  at  the  time  of  the  adoption  of  the 
Constitution,  and  consequently  many  years  before  Chief  \  \ 
Justice  Marshall  rendered  his  famous  decision  in  the 
Marbury  case. 

1  Meigs,  The  Relation  of  the  Judiciary  to  the  Constitution,  American 
Law  Review,  vol.  xix,  page  175.  Coxe,  Judicial  Power  and  Unconsti- 
tutional Legislation.  Austin,  American  Historical  Review,  vol.  iv, 
page  456. 

105]  ii 


12  UNCONSTITUTIONAL  LEGISLATION  [IO6 

It  is  also  quite  correct  to  say  that  the  doctrine  that 
the  courts  may  nullify  an  act  of  the  legislature  because 
in  conflict  with  the  constitution  is  distinctly  American. 
It  is  true  that  in  England  a  few  rather  sporadic  attempts 
were  made  by  the  judiciary  to  assert  the  power  of  the 
courts  to  refuse  to  enforce  a  statute  when  it,  in  their 
opinion,  was  contrary  to  justice  and  natural  reason. 
These  attempts  were  made,  however,  not  because  of  any 
power  claimed  on  the  part  of  the  courts  actually  to 
nullify  an  act  of  Parliament,  but  because  their  duty  as 
administrators  of  justice  made  it  necessary  to  refuse  to 
put  into  operation  a  statute  which  would,  in  particular 
instances,  work  individual  hardships.  As  these  statutes 
were  not  set  aside  because  of  a  conflict  with  any  definite 
superior  law,  but  on  the  general  grounds  of  incompati- 
bility with  natural  right  and  justice  and  the  fundamental 
rights  claimed  by  Englishmen ;  and  as  obviously  the  idea 
of  the  constitutionality  of  statutes  as  it  is  known  at  the 
present  time  could  not  develop  until  after  the  advent  of 
written  constitutions,  it  is  plain  that  these  English  cases 
can  offer  no  exact  precedents.  Hence  for  the  purpose 
of  this  discussion  it  will  not  be  necessary  to  consider 
them,  and  we  may  pass  at  once  to  the  development  of 
the  doctrine  of  declaring  legislation  void  in  American 
judicial  history. 

In  the  later  history  of  the  colonies  the  courts  were 
told  by  counsel  in  some  instances,  especially  the  Writs  of 
Assistance  Case,1  in  1772,  that  specific  laws  or  the  spe- 
cific application  of  general  laws  might  be  contrary  to 
common  sense  and  natural  justice,  and  that  consequently 

'John  Adams'  Report  of  Otis'  Speech,  C.  F.  Adams,  John  Adams' 
Works,  vol.  ii,  p.  521.  This  and  other  material  on  the  subject  are  col- 
lected in  American  History  Leaflets,  no.  32.  Compare  also  the  argu- 
ment made  in  Robin  v.  Hardaway,  Jeff.  Reports  109. 


EARLY  ATTITUDE  OF  THE  STATE  COURTS  I3 

the  courts  were  under  no  obligation  to  enforce  them  in 
the  particular  case  at  issue.  These  arguments  occurred 
in  the  colonial  courts  usually,  though  not  always,  when 
the  controversies  between  the  colonies  and  the  mother 
country  were  up  for  judicial  hearing,  and  the  arguments 
of  counsel  in  cases  involving  bitterly  contested  political 
issues  are,  of  course,  neither  conclusive  nor  prima  facie 
evidence  that  the  courts  had,  or  even  claimed  to  have, 
such  power.  However,  it  was  not  long  after  independ- 
ence had  been  declared  and  the  various  states  had  adopted 
constitutions  that  the  courts  began  to  assert  judicially 
their  power  to  declare  a  statute  void  should  it  seem  to 
them  to  conflict  with  the  constitution. 

One  of  the  very  earliest,  if  not  the  earliest  of  the  cases, 
which  may  illustrate  this  occurred  in  Virginia  in  1778, 
when  the  legislature  passed  a  bill  of  attainder  against 
one  Phillips.1  About  a  year  later  Phillips  was  captured, 
indicted  and  tried  by  the  regular  procedure  and  no 
notice  taken  of  the  act  of  attainder.  Whether  this  action 
was  due  to  the  discretion  of  the  Attorney-General  or  to 
the  refusal  of  the  courts  to  recognize  the  attainder  it 
seems  impossible  to  determine.2 

One  of  the  very  earliest  cases  in  which  it  seems  defi- 
nitely established,  although  no  opinion  has  been  found, 
that  the  court  declared  a  legislative  act  null  because  of  ^L 
conflict  with  the  constitution  is  Holmes  v.  Walton,  a 
New  Jersey  case  decided  in  1780.3  New  Jersey  in  an 
attempt  to  abolish  the  illegitimate  trade  with  the  British 

1  Hening's  Va.  Statutes  at  Large,  vol.  ix,  p.  463. 

*Cf.  Burk's  History  of  Virginia,  vol.  iv,  p.  304,  and  Tucker's  Black- 
stone,  vol.  i,  part  i,  appendix  p.  293.  See  also  Wirt,  Life  of  Patrick 
Henry,  appendix,  p.  14. 

3  See  Austin,  American  Historical  Review,  vol.  iv,  p.  456,  for  an  ex- 
tended account  of  this  case.  Referred  to  also  in  4  Halsted,  444. 


I4  UNCONSTITUTIONAL  LEGISLATION  [Iog 

enemy  passed  a  rather  drastic  act  providing  for  trial  in 
such  alleged  offenses  before  a  Justice  of  the  Peace  in 
which  a  jury  of  six  men  might  be  had  at  the  request  of 
either  party,  and  that  in  case  a  jury  was  used  there 
should  be  no  appeal  allowed.1  The  case  was  originally 
tried  before  a  Justice  of  the  Peace,  as  the  statute  pro- 
vided, and  then  came  before  the  Supreme  Court  on  a 
writ  of  certiorari. 

The  newly  adopted  constitution  of  New  Jersey  pro- 
vided that  "  The  inestimable  right  of  trial  by  jury  shall 
remain  confirmed  as  a  part  of  the  law  of  this  colony  with- 
out appeal,  forever,"2  and  the  legislator's  oath  particularly 
provided  for  the  protection  of  this  section  of  the  consti- 
tution.3 As  mentioned  before,  the  opinion  itself  has  not 
been  found,  but  it  seems  established  by  circumstantial 
evidence  that  the  statute  was  nullified  on  the  specific 
ground  that  it  was  contrary  to  the  constitution  of  the 
state,4  and  this  too  after  mature  consideration,  the  case 
having  been  carried  over  two  terms  of  court.  There  is 
judicial  evidence  of  this  decision  also  for,  in  a  case  heard 
nearly  twenty-five  years  later  involving  the  power  of  the 
judiciary  to  declare  a  law  unconstitutional,  the  Supreme 
Court  of  New  Jersey  said  : 5 

At  an  early  period  of  our  government  while  the  minds  of  men 

1  Act  passed  by  the  New  Jersey  Assembly,  Feb.  11,  1775,  Allinson's 
Compiled  Acts  of  the  Province  of  New  Jersey,  p.  468;  also  Wilson's 
Laws  of  New  Jersey ,  Appendix  v. 

2  Section  22,  Thorpe's  Charters  and  Constitutions ,  vol.  v,  p.  2598. 

3  Section  23,  ibid. 

4  One  proof  of  this  is  the  fact  that  petitions  were  addressed  to  the 
Assembly  protesting  against  the  action  of  the  court  in  having  "set  aside 
some  of  the  laws  as  unconstitutional  and  made  void  the  proceedings  of 
the  magistrates  though  strictly  agreeable  to  the  laws."     See  Austin, 
op.  cit. 

'State  v.  Parkhurst,  4  Halsted,  427,  444  (1804). 


,09]       EARLY  ATTITUDE  OF  THE  STATE  COURTS  I5 

were  yet  unbiased  by  party  prejudices  this  question  was 
brought  forward  in  the  case  of  Holmes  v.  Walton.  .  .  .  There 
it  had  been  enacted  that  the  trial  should  be  by  a  jury  of  six 
men  and  it  was  objected  that  this  was  not  a  constitutional 
jury;  and  so  it  was  held;  and  the  act  upon  solemn  judgment 
was  adjudged  to  be  unconstitutional  and  in  that  case  inopera- 
tive. 

The  court  then  continues  that  the  act  was  repealed  and 
the  common-law  jury  substituted,1  and  concludes,  "This,       , 
then,  is  not  only  a  judicial  decision,  but  a  decision  recog- 
nized and  acquiesced  in  by  the  legislative  body  of  the 
state." 

It  is  true  both  that  the  Walton  case  was  argued  on 
the  grounds  that  the  statute  was  in  conflict  with  the 
"  Laws  of  the  Land,"  and  that  the  opinion  is  not  extant, 
but  the  constitution  was  part  of  these  laws  and  circum- 
stantial evidence  seems  to  warrant  it  being  given  as  a 
case  in  which  the  constitutional  question  was  clearly  pre- 
sented and  as  clearly  decided. 

In  Virginia  is  found  one  of  the  earliest  if  not  the 
earliest  extant  opinion 2  in  which  a  court  declared  it  had 
power  to  nullify  a  statute  because  of  conflict  with  the 
constitution,  and  this  power,  though  not  actually  used, 
was  aggressively,  boldly  and  rather  gratuitously  asserted. 
The  question  really  at  issue  was  whether  in  a  certain 
class  of  cases  a  pardon  voted  by  one  House  of  the  As- 
sembly was  sufficient.  The  clause  of  the  constitution 

dealing  with  this  subject  was  ambiguous,  admitting  of 

i 

1  Shortly  after  this  case  was  argued  but  before  the  decision  was  ren- 
dered the  legislature  passed  an  act  (1779)  allowing  the  justice  of  the 
peace  to  empanel  a  jury  of  twelve  men  if  demanded  by  either  party  to 
the  suit  and  after  the  decision  was  given  in  1780,  another  act  was  passed 
requiring  the  justice  on  the  demand  of  either  litigant  to  grant  a  common- 
law  jury.  See  Wilson's  Laws  of  New  Jersey,  Appendices  vii  and  viii. 

*  Commonwealth  v.  Caton,  4  Call,  5  (1782). 


l6  UNCONSTITUTIONAL  LEGISLATION  [IIO 

different  constructions.  The  prisoner's  counsel,  how- 
ever, injected  a  second  question  into  the  case,  alleging 
that  the  legislature  had,  by  another  act,  improperly  lim- 
ited the  executive  power  of  pardon,  and  hence  the  latter 
"  statute  was  contrary  to  the  plain  declaration  of  the 
constitution ;  and  therefore  void."  Although  the  case 
was  largely  or  entirely  one  of  interpretation,  it  was  this 
last  contention  of  counsel  that  gave  the  court  its  pretext 
for  expressing  its  opinion  on  a  delicate  question  which, 
it  was  unanimously  agreed,  was  not  necessarily  involved 
in  the  point  at  issue.  Wythe,  J.,  speaking  of  the  im- 
portance of  conditions  ''when  those  who  hold  the  purse 
and  the  sword,  differing  as  to  the  powers  which  each 
may  exercise,  .  .  .  the  tribunals,  who  hold  neither,  are 
called  upon  to  declare  the  law  impartially  between  them," 
said : 

Under  these  impressions  I  approach  the  question  which  has 
been  submitted  to  us;  and  although,  it  was  said  the  other  day, 
by  one  of  the  judges,  that,  imitating  that  great  and  good  man 
Lord  Hale,  he  would  sooner  quit  the  Bench  than  determine 
it,  I  feel  no  alarm;  but  will  meet  the  crisis  as  I  ought;  and, 
in  the  language  of  my  oath  of  office,  will  decide  it,  according 
to  the  best  of  my  skill  and  judgment. 

I  have  heard  of  an  English  Chancellor  who  said,  and  it  was 
nobly  said,  that  it  was  his  duty  to  protect  the  rights  of  a  sub- 
ject against  the  encroachment  of  the  Crown;  and  that  he 
would  do  it,  at  every  hazard.  But  if  it  was  his  duty  to  pro- 
tect a  solitary  individual  against  the  rapacity  of  the  sovereign, 
surely,  it  is  equally  mine  to  protect  one  branch  of  the  legisla- 
ture, and,  consequently  the  whole  community,  against  the 
usurpation  of  the  other;  and  whenever  the  proper  occasion 
occurs,  I  shall  feel  the  duty;  and  fearlessly  perform  it. 

The  justice  then  states  that  when  one  branch  of  the 
legislature  attempts  to  usurp  powers, 


m]       EARLY  ATTITUDE  OF  THE  STATE  COURTS  ij 

I  shall  not  hesitate,  sitting"  in  this  place,  to  say  ...  to  the 
usurping:  branch  of  the  legislature,  you  attempt  worse  than  a 
vain  thing;  for,  althoug-h,  you  cannot  succeed,  you  set  an 
example,  which  may  convulse  society  to  its  center.  Nay 
more,  if  the  whole  legislature,  an  event  to  be  deprecated, 
should  attempt  to  overleap  the  bounds  prescribed  to  them  by 
the  people,  I,  in  administering  the  public  justice  of  the 
country,  will  meet  the  united  po\vers  at  my  seat  in  this  tri- 
bunal; and  pointing  to  the  constitution,  will  say,  to  them,  \ 
here  is  the  limit  of  your  authority;  and  hither  shall  you  go, 
but  no  farther. 

After  this  bold  and  by  no  means  unduly  modest  asser- 
tion the  learned  justice  closes  his  remarks, 

This  mode  of  considering  the  subject,  obviates  the  objection 
made  by  the  prisoner's  counsel,  relative  to  the  constitu- 
tionality of  the  act  concerning  treason;  for  according  to  the 
interpretation  just  discussed  there  is  nothing  unconstitutional 
about  it. 

Pendleton,  President,  was  not  so  sure  as  to  the  extent 
of  the  powers  of  the  court  as  opposed  to  those  of  the 
legislature,  though  he  recognized  it  as  a  "  tremendous 
question,"  and  confining  his  remarks  to  the  case  at  hand, 
says  :  "  I  am  happy  in  being  of  opinion  there  is  no  oc- 
casion to  consider  it  upon  this  occasion." 

The  report  of  the  case  then  concludes:  "Chancellor 
Blair  and  the  rest  of  the  judges,  were  of  opinion  that  the 
court  had  power  to  declare  any  resolution  or  act  of  the 
legislature,  or  of  either  branch  of  it,  to  be  unconstitu- 
tional and  void." 

There  can  be  no  doubt  that  in  this  case  an  individual 
judge,  if  not  the  court,  claimed  for  the  judiciary  as  great, 
absolute  and  definite  power  as  it  has  ever  been  able  to 
reach  or  that  has  ever  been  claimed  for  it,  and  that  this 


!g  UNCONSTITUTIONAL  LEGISLATION  [II2 

power  was  asserted  when,  according  to  the  court's  de- 
cision, there  was  no  necessity  whatever  of  expressing  an 
opinion  on  the  subject.  Also  there  does  not  seem  to 
have  been  any  protest  against  this  on  the  part  of  the 
public,  possibly  due  to  the  fact  that  the  theory,  not 
being  actually  put  into  practice  and  hence  void  of  con- 
crete results,  excited  no  general  interest. 

Probably  the  next  case  in  point  of  time  in  which  the 
judiciary  refused  to  enforce  a  statute  was  Rutgers  v. 
Waddington,1  in  the  Mayor's  court  of  New  York  in  1786. 
In  a  somewhat  lengthy  and  learned  opinion  the  court 
rendered  a  compromise  decision,  in  which  it  refused  to 
give  an  act  of  the  state  legislature  full  force  and  effect. 
The  case  was  decided  upon  general  principles  of  natural 
right,  common  sense  and  the  laws  of  nations  as  laid 
down  by  Vattell,  Puffendorf,  and  others,  and  the  ques- 
tion of  a  direct  conflict  between  the  statute  and  a  written 
fundamental  law  was  not  passed  upon.  Indeed  the  court 
says  : 

The  supremacy  of  the  legislature  need  not  be  called  into 
question;  if  they  think  fit  positively  to  enact  a  law,  there  is  no 
power  which  can  control  them.  When  the  main  object  of 
such  a  law  is  clearly  expressed,  and  the  intention  manifest, 
the  judges  are  not  at  liberty,  altho'  it  appears  to  them  to  be 
unreasonable,  to  reject  it;  for  this  were  to  set  the  judicial  above 
the  legislative,  which  would  be  subversive  of  all  government. 

But  the  court,  following  Blackstone,  adds  that, 

when  a  law  is  expressed  in  general  words,  and  some  collateral 
matter,  which  happens  to  arise  from  those  general  words  is 
unreasonable,  there  the  judges  are  in  decency  to  conclude, 
that  the  consequences  were  not  foreseen  by  the  Legislature; 

1  London's  The  Case  of  Rutgers  v,  Waddington,  introduction  by  H.  B, 
Dawson. 


H^]       EARLY  ATTITUDE  OF  THE  STATE  COURTS  19 

and  therefore  they  are  at  liberty  to  expound  the  statute  by 
equity,  and  only  quoad  hoc  to  disregard  it. 

Following  this  idea  a  compromise  judgment  was  ren- 
dered which  did  not  apply  the  statute  to  its  full  extent. 

But  this  mild  assertion  by  the  court  of  its  power  to 
refuse  to  enforce  the  full  letter  of  the  statute  was  ap- 
parently not  received  kindly,  for  shortly  afterwards  at  a 
meeting  held  in  New  York  City  a  committee  of  nine 
was  appointed  to  draw  up  an  address.  The  committee 
accordingly  prepared  a  memorial  "  To  the  People  of  the 
State  of  New  York,"  scoring  the  court  and  asserting 
that  "This  proceeding,  in  the  opinion  of  a  good  part  of 
the  citizens  of  this  metropolis,  and,  in  our  opinion,  is  an 
assumption  of  power  in  that  court,  which  is  inconsistent 
with  the  nature  and  genius  of  our  Government,  and 
threatening  to  the  liberties  of  the  People."  * 

Shortly  afterwards  the  question  was  brought  before 
the  lower  House  of  the  legislature  and  the  clerk  of  the 
court  ordered  to  produce  the  records  of  the  case.  The 
clerk  complied,  and  after  some  debate  the  House  adopted 
a  resolution  which  first  reciting  the  facts  of  the  case  and 
stating  that  the  court  had  admilted  a  plea  by  the  defend- 
ant specifically  forbidden  by  the  statute  then, 

Resolved,  That  the  judgment  aforesaid,  is,  in  its  tendency, 
subversive  of  all  law  and  good  order  and  leads  directly  to 
anarchy  and  confusion;  because  if  a  court  instituted  for  the 
benefit  and  government  of  a  Corporation  may  take  upon  them 
to  dispense  with  an  act  in  direct  violation  of  a  plain  and 
known  law  of  the  state,  all  other  courts,  either  superior  or 
inferior,  may  do  the  like,  and  therewith  will  end  all  our  dear 
bought  rights  and  privileges,  and  legislatures  become  useless.2 

1  Dawson,  op.  cit.\  p.  xlv. 

2  Journal  New  York  Assembly,  1782,  p.  32,  quoted  in  Dawson.     See 
also  McMaster's  History  of  the  U.  S.,  vol.  i,  p.  219. 


20  UNCONSTITUTIONAL  LEGISLATION  [II4 

Evidently  neither  the  people  nor  the  legislature  was  in- 
clined to  acquiesce  in  this  asserted  power  of  the  court 
when  an  attempt  was  made  actually  to  apply  it  in  a  con- 
crete case  as  distinct  from  a  mere  statement  of  the  theory. 

The  next  case  in  which  the  courts  asserted  the  doc- 
trine of  judicial  nullification  was  probably  the  much  ad- 
vertised Trevett  v.  Weeden  in  Rhode  Island  in  I786.1 
This  case  is  widely  known  partly  because  of  the  exciting 
contest  being  waged  at  the  time  between  the  paper  and 
hard-money  parties,  partly  because  the  legislature  took 
cognizance  of  the  matter  and  started  proceedings  look- 
ing toward  the  removal  of  the  judges  who  rendered  the 
decision,  and  also  partly  because  the  counsel  for  the  de- 
fense made  a  long  argument  and  then  took  the  precau- 
tion to  print  his  remarks  so  as  to  preserve  them  for  the 
future.  It  is  unfortunate  from  the  standpoint  of  ac- 
curacy and  fact  that  the  arguments  of  the  counsel  rather 
than  the  opinion  of  the  court  are  extant.  The  latter  is 
not  found  and  was  probably  only  an  oral  one. 

Rhode  Island  had  passed  an  act  compelling  the  ac- 
ceptance of  paper  money,  and  providing  for  an  imme- 
diate trial  without  a  jury  for  anyone  who  violated  the 
terms  of  the  law.  Wide  publicity  has  been  given  this 
case  and  the  position  assumed  by  the  court.  Much  of 
our  information,  however,  is  based  entirely  on  the  argu- 
ment of  the  counsel  for  the  defendant,  and  the  defense 
made  by  the  judges  before  the  Assembly  rather  than  on 
any  exact  record  of  what  the  court  actually  did  or  said. 
At  all  events  there  can  be  no  doubt  but  that  the  court 
in  a  none  too  orderly  proceeding  refused  to  put  the  act 
into  operation.2 

1  See  pamphlet,   The  Case  of  Jrevett  v.  Weeden,  by  J.  M.  Varnum 
who  was  counsel  for  the  defense. 

2  See   McMaster,  op.  cit.,  vol.  i,  p.  337,  for   description  of  case  and 
reference  to  contemporaneous  accounts. 


H-J       EARLY  ATTITUDE  OF  THE  STATE  COURTS  2I 

The  aftermath  was  soon  apparent,  as  in  about  a  week 
a  summons  was  issued  from  both  Houses  of  the  As- 
sembly demanding  the  presence  of  the  judges  "to  render 
their  reasons  for  adjudging  an  act  of  the  General  As- 
sembly unconstitutional,  and  so  void."1  Three  of  the 
five  judges  appeared  and  made  their  defense,  and  then 
influenced  by  some  motive,  possibly  the  fear  of  dismissal 
should  the  legislature  pass  on  the  merits  of  the  case,  the 
judges  befogged  the  issue  by  diverting  the  attention  of 
their  prosecutors  from  the  real  issue  to  a  new  technical  one, 
claiming  it  was  not  due  process  of  law  to  dismiss  them 
without  specific  charges  and  a  hearing  on  those  charges. 
With  this  showing  coupled  with  the  fact  that  the  judges 
were  elected  from  year  to  year  by  the  Assembly  and 
consequently  had  but  a  short  time  to  serve,  the  case 
against  the  judges  was  dropped,  but  the  Assembly  "Re- 
solved, that  no  satisfactory  reasons  have  been  rendered 
by  them  for  their  judgment  on  the  foregoing  informa- 
tion." It  can  scarcely  be  said,  therefore,  that  the  court 
won  much  of  a  victory  in  its  contest  with  the  legislature, 
or  that  the  doctrine  that  the  courts  could  declare  a  law 
unconstitutional  gained  much  prestige  because  of  its 
application  in  this  instance.  It  is  also  worthy  of  note 
that  in  this  case  the  court  was  not  defending  its  own 
independence  but  was  upholding  private  property  rights. 

Another  Southern  state  was  next  to  assert  this  right 
of  the  judiciary.  A  North  Carolina  statute  provided 
that  in  ejectment  proceedings  the  case  should  be  dis- 
missed on  motion,  if  the  defendant  should  make  an  affi- 
davit to  the  effect  that  he  had  purchased  the  property  in 
dispute  from  the  Commissioner  of  Forfeited  Estates. 
The  judicial  interpretation  of  this  statute  was  first  made 

1  Records  of  the  State  of  Rhode  Island  and  Providence  Plantations, 
edited  by  J.  R.  Bartlett,  vol.  x,  pp.  215,  218.     Also  quoted  in  Varnum. 


22  UNCONSTITUTIONAL  LEGISLA  77OAr  [  j  j  6 

in  Den  v.  Singleton  in  1787.*  The  court  made  every 
endeavor  to  persuade  the  parties  to  settle  the  contro- 
versy or  submit  to  the  usual  trial  by  jury  but  without 
result. 

The  court  then,  after  every  reasonable  endeavor  had  been 
used  in  vain  for  avoiding:  a  disagreeable  difference  between 
the  Legislature  and  the  judicial  powers  of  the  State,  at  length 
with  much  apparent  reluctance,  but  with  great  deliberation 
and  firmness,  gave  their  opinions  separately,  but  unanimously 
for  overruling  the  aforementioned  motion  for  the  dismission 
of  the  said  suits. 

In  the  course  of  which  the  judges  observed, that 

notwithstanding  the  great  reluctance  which  they  might  feel 
against  involving  themselves  in  a  dispute  with  the  Legislature 
of  the  State,  yet  no  object  of  concern  or  respect  could  come 
in  competition  or  authorize  them  to  dispense  with  the  duty 
they  owed  the  public,  in  consequence  of  the  trust  they  were 
invested  with  under  the  solemnity  of  their  oaths. 

But  that  it  was  clear,  that  no  act  they,  [the  Legislature], 
could  pass  could  by  any  means  repeal  or  alter  the  constitu- 
tion. .  .  .  Consequently  the  constitution  (which  the  judicial 
power  was  bound  to  take  notice  of  as  well  as  of  any  other 
law)  standing  in  full  force  as  the  fundamental  law  of  the  land, 
notwithstanding  the  act  on  which  the  present  motion  was 
grounded,  the  same  act  must  of  course,  in  that  instance,  stand 
as  abrogated  and  without  any  effect. 

The  case  was  then,  notwithstanding  the  statute,  tried  by 
jury  and  verdict  rendered  for  the  defendant.  In  this 
instance  the  court  not  only  asserted  its  theoretical  power 
to  disregard  an  act  of  the  legislature  which  it  deemed 
unconstitutional,  but  vindicated  itself  by  actually  exer- 
cising the  power  claimed. 

The  Virginia  courts  again  asserted  their  power  in  a 

1  i  Martin,  48. 


n^]       EARLY  ATTITUDE  OF  THE  STATE  COURTS  03 

case  arising  in  1788.'  The  legislature  oi  that  state  pro- 
vided that  the  Court  of  Appeals  should  organize  the  dis- 
trict courts.  The  act  greatly  increased  the  judicial  and 
traveling  burdens  of  the  judges  of  the  appellate  court 
without  any  increase  in  salaries,  and  the  judges  asserted 
that  in  taking  their  stand  they  were  simply  protecting 
the  independence  of  the  judiciary  from  legislative  ag- 
gression. 

At  the  session  when  the  district  courts  should  have 
been  organized  the  Court  of  Appeals  did  not  follow  the 
statute,  but  instead  addressed  a  memorial  "  To  the  Hon- 
orable the  Speakers  and  other  .Members  of  the  Senate 
and  House  of  Delegates  of  the  Commonwealth  of  Vir- 
ginia, in  General  Assembly."  In  this  address  the  judges 
lamenting  the  fact  that  they  must  determine  so  delicate 
a  question 

found  themselves  obliged  to  decide,  however  their  delicacy 
might  be  wounded,  or  whatever  temporary  inconvenience  might 
ensue,  and  in  that  decision,  to  declare,  that  the  constitution 
and  act  are  in  opposition  and  can  not  exist  together;  and  that 
the  former  must  control  the  operation  of  the  latter. 

The  legislature  took  no  direct  notice  of  the  address,  but 
did  pass  an  act  reorganizing  the  judiciary,  and  later  the 
judges  resigned  their- commissions  as  judges  of  the  Court 

lfThe  Case  of  the  Judges,  4  Call,  135.  Possibly  about  the  same  time 
the  Massachusetts  courts  claimed  the  same  right  but  the  only  evidence 
of  this  seems  to  be  a  letter  addressed  to  Jefferson  by  Thomas  B.  Cut- 
ting, under  date  of  July  u,  1788.  Seeletterin  Bancroft's  History  of  the 
Constitution,  edition  1882,  vol.  ii,  p.  472.  Also  Proceedings  of  the  Mass- 
achusetts Historical  Society,  2nd  Series,  vol.  xvii,  p.  507.  Since  there 
is  practically  nothing  known  about  the  case  and  it  attracted  no  public 
attention  or  comment  and  has  not  been  cited  judicially  as  a  precedent 
it  is  of  but  little  value  in  tracing  the  development  of  the  doctrine  of  un- 
constitutionally. 


24  UNCONSTITUTIONAL  LEGISLATION  [ng 

of  Appeals,  and  some  of  them  were  appointed  members 
of  the  reorganized  court. 

It  is  worthy  of  note  in  this  case  that  the  judiciary  was 
fighting  to  maintain  its  own  independence,  and  also  that 
it  was  so  uncertain  of  its  position  that  it  only  called  the 
attention  of  the  legislature  to  the  impossible  position  in 
which  it  was  placed  and  asked  for  relief.  Although  the 
same  court  previously  in  Commonwealth  v.  Caton,1  had 
made  a  bold  assertion  of  its  power,  no  mention  is  made 
of  that  fact  in  the  present  case. 

A  South  Carolina  court  next  took  issue  with  the  leg- 
islature, but  in  this  instance2  it  can  scarcely  be  said  that 
the  question  of  constitutionality  in  the  modern  sense 
was  involved.  A  confusion  of  land  titles  had  resulted, 
and  in  1712  the  legislature  arbitrarily  settled  the  matter, 
vesting  the  title  in  one  of  the  claimants.  When  the  case 
came  up  for  judicial  hearing  the  court  said  : 

The  court,  who  after  a  full  consideration  of  the  subject,  were 
clearly  of  opinion,  that  the  plaintiffs  could  claim  no  title 
under  the  act  in  question,  as  it  was  against  common  right,  as 
well  as  Magna  Charta,  to  take  away  the  freehold  of  one  man, 
and  vest  it  in  another;  and  that  too,  to  the  prejudice  of  third 
persons,  without  any  compensation,  or  even  a  trial  by  jury  of 
the  country,  to  determine  the  right  in  question.  That  the  act 
was,  therefore,  ipso  facto,  void.  That  no  length  of  time  could 
give  it  validity,  being  originally  founded  upon  erroneous 
principles. 

It  will  thus  be  seen  that  the  constitution  of  the  state 
was  not  mentioned,  the  reasoning  of  the  court  following 
the  English  idea  that  the  act  was  void  because  "  con- 
trary to  common  right  and  Magna  Charta,"  and  the 

'4  Call,  5,  supra,  p.  15. 

2  Bowman  v.  Middleton,  i  Bay,  252,  1792. 


HOJ       EARLY  ATTITUDE  OF  THE  STATE  COURTS  25 

court  did  not  avail  itself  of  the  precedents  of  sister  states 
in  nullifying  a  law  because  in  conflict  with  the  constitu- 
tion. 

In  1792  in  Turner  v.  Turner.1  and  in  1793  in  Page  v. 
Pendleton,2  the  Virginia  courts  again  considered  the 
subject.  The  first  case,  however,  was  really  one  of  in- 
terpretation, the  court  giving  the  statute  a  construction 
which  it  thought  not  inconsistent  with  the  constitution, 
and  contenting  itself  with  informing  the  legislature  that, 
"It  is  the  business  of  the  legislature  to  make  the  laws; 
and  of  the  judges  to  expound  them.  Having  made  the 
law,  the  legislature  has  no  authority  afterwards  to  ex- 
plain its  operation  upon  things  already  done  under  it." 

The  second  case  dealt  with  the  sequestration  of  debts 
due  from  Americans  to  British  subjects  during  the  war. 
It  is  a  quaint  opinion,  and  in  reading  it  one  is  given  the 
impression  that  the  court  had  a  preconceived  idea  of 
what  justice  required,  and  then  called  upon  the  laws  of 
justice,  of  nature,  and  of  nations  to  support  that  idea 
rather  than  resorting  to  the  more  direct  expedient  of  nulli- 
fication. Notwithstanding  the  language  of  the  same  court 
in  Caton  v.  Commonwealth,3  that  case  is  not  now  cited 
nor  does  the  court  definitely  draw  the  issue  between  the 
legislative  and  judicial  branches,  nor  assert  that  the 
statute  is  contrary  to,  or  set  aside  by  any  fundamental 
written  law,  yet  its  judgment  is  in  direct  conflict  with 
the  statute,  and  in  effect  the  latter  fails  in  its  purpose. 
As  yet  even  the  Virginia  judges  did  not  quite  have  the 
courage  of  their  indicated  convictions,  nor  consider 
themselves  securely  fixed  in  a  position  which  would 

1  4  Call,  234. 

2  Wythe's  Reports,  211. 

3  Supra,  p.    15.     For  statutes  construed  in  the  case    see    Hening's 
Virginia  Statutes  at  Large,  vol.  ix,  p.  377;  vol.  xii,  p.  529. 


26  I'XCOXSTITUTIONAL  LEGISLATION  [I2o 

enable  them  definitely  to  declare  a  law  void  and  worth- 
less. 

However,  if  the  Virginia  court  wavered  in  its  position 
in  the  preceding  case,  it  again  asserted  its  power  in  a 
contest  following  shortly  afterwards,  Kampfer  v.  Haw- 
kins.1 In  a  series  of  rather  lengthy  opinions  the  judges 
attempted  to  maintain  the  independence  of  the  judiciary 
by  coming  out  squarely  against  a  statute.  The  legisla- 
ture had  given  district  judges  power  to  act  as. chancery 
judges  under  certain  conditions.  The  latter  were  pro- 
vided for  in  the  constitution  and  given  life  or  good 
behavior  tenure,  while  the  district  judgeships  were  stat- 
utory creations  with  judges  having  limited  tenure. 

Nelson,  J.,  after  discussing  the  proposition  whether 
the  legislature  could  alter  the  constitution  and  denying 
the  charge  that  in  nullifying  a  statute  the  court  was  as- 
suming legislative  power,  concludes  his  opinion,  "  On 
the  whole,  I  am  for  certifying  to  the  court  below,  that 
the  motion  for  an  injunction  be  overruled,  the  clause 
under  which  it  is. prayed  being  unconstitutional." 

Roane,  J.,  after  saying  that  at  first  he  had  believed 
that  the  courts  had  no  choice  but  to  follow  a  statute  says  : 

I  now  think  that  the  judiciary  may  and  ought  not  only  to 
refuse  to  execute  a  law  expressly  repugnant  to  the  Constitu- 
tion; but  also  one  which  is  by  a  plain  and  natural  construc- 
tion, in  opposition  to  the  fundamental  principles  thereof. 

The  learned  judge  then  says  that  the  court  in  attempting, 
to  maintain  its  constitutional  position  by  declaring  a 
statute  void  "  will  be  censured  by  the  ill-disposed  part  of 
their  fellow  citizens,"  yet  the  court  must  do  its  duty,  and 
the  integrity  of  the  constitution  has  been  upheld  against 

1  i  Virginia  Cases,  20,  1793. 


I2i]       EARLY  ATTITUDE  OF  THE  STATE  COURTS  2J 

the  legislature  "by  the  repeated  adjudications  of  this 
court."  The  opinion  closes  with  the  following:  "  From 
the  above  premises  I  conclude  that  the  judiciary  may  and 
ought  to  adjudge  a  law  unconstitutional  and  void,  if  it 
be  plainly  repugnant  to  the  letter  of  the  Constitution,  or 
the  fundamental  principles  thereof,"  and  "  I  am  of  the 
opinion,  that  the  clause  in  question,  is  repugnant  to  the 
fundamental  principles  of  the  constitution.  .  .  ." 

Tyler,  J.,  says  it  is  "truly  painful"  for  him  to  pass  on 
the  question  of  constitutionality,  but  he  cannot  shirk  his 
duty.  He  defends  the  power  of  the  courts  to  declare  an 
act  of  the  legislature  void  if,  in  the  opinion  of  the  courts, 
it  conflicts  with  the  constitution,  and  to  those  who  ob- 
ject to  this  doctrine  he  says  :  "  A  little  time  and  trouble 
bestowed  on  this  subject,  I  am  sure,  would  enable  any 
one  endowed  with  common  understanding,  to  see  the 
fallacy  of  such  sentiments."  The  judge  then  says  he  will 
not  hesitate  to  compare  the  constitution  and  the  statute 
and  pronounce  judgment  as  he  may  see  fit,  and  concludes, 
"  I  concur  therefore  most  heartily  with  my  brothers, 
.  .  .  .  that  the  law  is  unconstitutional  and  ought  not  to 
be  executed." 

Tucker,  J.,  says  he  will  cite  authority  and  precedent  as 
part  of  his  argument  to  sustain  the  position  of  the  court. 
He  refers  first  to  legislative  precedent,  then  quotes  from  the 
Federalist,1  and  finally  takes  up  the  Case  of  the  Judges,2 
and  cites  that  as  a  precedent  for  the  present  decision.3 

1  Federalist,  no.  79. 

*  Supra,  p.  23. 

3  The  argument  that  the  courts  are  the  protectors  of  the  constitution 
as  against  the  legislature  does  not  sound  very  convincing  coming  from 
this  tribunal,  as  Judge  Henry,  who  sat  in  this  case,  admits  he  is  hold- 
ing his  position  on  the  bench  and  performing  his  duties  contrary  to  the 
constitution,  but  excuses  himself  on  the  plea  of  causing  much  difficulty 
should  he  refuse  to  continue. 


2g  CX CONSTITUTIONAL  LEGISLATION  [I2z 

This  seems  to  be  the  first  case  on  record  where  a  court 
has  attempted  to  maintain  its  position  on  this  question 
I   by  established  precedent,  though  there  were  a  consider- 
\  able  number  of  judicial  opinions  which  might  have  been 
•  used  for  this  purpose  prior  to  this  decision. 

In  the  same  year,  1793,  the  South  Carolina  court  made 
some  rather  bold  assertions  in  Ham  v.  M'Claws,1  though. 
1  rendering  a  decision  really  based  on  a  liberal  interpreta- 
tion of  the  statute  for  this  particular  case,  and  the  ques- 
tion of  constitutional  conflict  was  not  raised. 

In  1793  the  Pennsylvania  Supreme  Court  declared  the 
|  judiciary  had  power  to  declare  a  statute  unconstitutional,, 
though  without  actually  exercising  the  asserted  right. 
The  facts  of  the  case2  are  somewhat  complicated.  One 
Austin  was  declared  attainted  and  his  estate  forfeited  to 
the  state  in  1780.  The  estate  was  sold  to  the  plaintiff, 
who  failed  to  make  the  required  payments,  and  it  there- 
upon presumably  reverted  to  the  commonwealth,  and  the 
legislature  then  attempted  to  pass  title.  The  court,  but 
one  justice  sitting, '  said  :  "But  the  act  [presuming  to 
vest  title  in  the  plaintiff]  was  repealed  previous  to  the 
institution  of  this  suit,  ...  for  the  reasons  particularly 
enumerated  in  the  preamble  thereof,  and  I  have  no  diffi- 
culty in  declaring  for  the  same  reasons,  that  the  former 
act  was  unconstitutional!''  The  court  presents  no  argu- 
ment to  substantiate  its  power  so  to  treat  an  act,  nor 

1  i   Bay  93.     The  facts  in  this  case  were  as  follows:   South  Carolina 
had  prior  to  1788  an  act  intended  to  limit  slave  importations  but  allow- 
ing actual  settlers  to  bring  in  slaves  for  their  own  use.     In  1788  slave 
importations  were  entirely  forbidden  and  heavy  penalties  attached  for 
violations  of  the  act.     The  M'Claws  with  their  slaves  left  British  Hon- 
duras before  the  act  of  1788  was  passed  but  actually  arrived  after  it  was 
in  force.     The  court  refused  to  put  the  act  in  operation  so  far  as  this 
particular  case  was  concerned  and  the  jury  found  for  the  defendants. 

2  Austin  v.  Trustees,  i  Yeates,  260. 


I23]       EARLY  ATTITUDE  OF  THE  STATE  COURTS  2g 

had  this  right  ever  been  exercised  by  the  Pennsylvania 
judiciary  before. 

Shortly  after  this  the  doctrine  was  apparently  asserted 
and  enforced  in  New  Jersey  in  Taylor  v  Reading.1  In  a 
case2  heard  some  years  later  the  court  in  reviewing 
Taylor  v  Reading  says  that  an  act  of  legislature  passed 
in  1795  "was  by  this  court  held  to  be  an  ex  post  facto1' 
law,  and  as  such  unconstitutional,  and  in  that  case  in- 
operative/' But  little  is  known  of  this  case  and  appar- 
ently the  only  part  it  played  in  the  development  of  the 
idea  was  to  serve  later  as  a  precedent. 

In  1799  the  Pennsylvania  courts  again  asserted  what 
they  claimed  to  be  their  constitutional  power  regarding 
legislation.4  Acting  under  statutory  authority,  Philadel- 
phia passed  an  ordinance  prohibiting  wooden  buildings 
in  certain  sections  of  the  city.  The  question  of  consti- 
tutionality was  argued  and  after  the  court  upheld  the 
ordinance  it  could  not  forbear  to  say, 

As  to  the  constitutionality  of  these  laws,  a  breach  of  the  con- 
stitution by  the  legislature,  and  the  clashing  of  the  law  with 
the  constitution,  must  be  evident  indeed,  before  we  should 
think  ourselves  at  liberty  to  declare  a  law  void  and  a  nullity 
on  that  account;  yet  if  a  violation  of  the  constitution  should 
in  any  case  be  made  by  an  act  of  the  legislature,  and  that 
violation  should  unequivocally  appear  to  us,  we  shall  think  it 
our  duty  not  to  shrink  from  the  task  of  saying  such  law  is 
void.  We  however  see  no  such  violation  in  the  present  case, 
and  therefore  give  judgment  for  the  commonwealth. 

In   the  foregoing  the  court  gratuitously  announced  its 

1  Cited  and  a  short  synopsis  given  in  4  Halsted,  444. 

2  State  v.  Parkhurst,  4  Halsted,  427. 

8  The  act  was  not  a  criminal  one  but  a  statute  declaring  that  in  certain 
cases  Continental  paper  money  should  be  received  the  same  as  specie. 
4  Republica  v.  Duquet,  2  Yeates,  493. 


30  L'XCOXSTITUTIOXAL  LEGISLATION  [I2j. 

position  since  the  statement  on  the  question  of  holding- 
legislation  void  was  in  no  way  essential  to  the  decision 
— in  fact  was  added  apparently  as  an  after-thought. 

The  Maryland  courts  were  the  next  to  claim  the  right 
I  to  determine  whether  the  legislature  had  exceeded  its  con- 
stitutional powers  in  the  case  of  Whittington  v  Polk1  in 
1802.  The  question  was  whether  the  office  of  Justice  of 
the  Peace  was  included  in  the  tenure  of  office  guaranteed 
to  the  judiciary  by  the  constitution.  The  court  said  that 
two  constitutional  questions  were  involved ;  first,  is  a 
legislative  act  contrary  to  the  constitution  void,  and 
second,  does  the  court  have  power  to  declare  such  an 
act  void,  and  also  stated  that  the  two  points  were  con- 
ceded by  the  counsel  for  the  defendant.  "  Indeed  they 
have  not  been  controverted  in  any  of  the  cases  which 
have  been  brought  before  this  court. 

Notwithstanding  these  concessions,  the  court  deem  it 
\  necessary  to  communicate  the  reasons  and  the  grounds 
/  for  their  opinion  on  those  points."  It  is  then  held  that 
there  must  be  some  power  to  decide  such  questions — 
the  people  can  not  because  of  practical  reasons  if  for  no 
other.  "  The  constitution  has  placed  the  judiciary  as 
the  barrier  or  safeguard  to  resist  the  oppression  and 
redress  the  injuries  which  might  occur  from  such  inad- 
vertent or  unintentional  infringement  of  the  constitution" 
and  this  power  is  properly  vested  in  the  judiciary, 
because  it  is  independent  and  because  the  judges  are 
appointed  by  the  executive  who,  it  is  to  be  presumed, 
will  appoint  only  upright  and  learned  judges  and,  "  with- 
out disparagement  to  the  talents  and  legal  acquirements 
of  others,"  the  judges  will  be  those  "  who  are  better 
qualified  and  more  competent  than  the  rest  of  the  com- 

'  i  Harris  &  Johnson,  236. 


125] 


EARLY  ATTITUDE  OF  THE  STATE  COURTS 


munity."  The  opinion  then  closes  with  the  statement 
that  although  the  act  is  unjust,  "The  court  are  of  the 
opinion  that  the  said  act  is  not  void."  Except  the 
desire  to  claim  the  power  it  is  difficult  to  see  any  ex- 
cuse or  justification  for  the  discussion  regarding  the 
ability  of  the  court  to  declare  a  statute  void  when  that 
power  was  not  involved  in  the  decision. 

In  1802  a  North  Carolina  Circuit  Court  in  Ogden  v. 
Witherspoon x  asserted  the  doctrine  clearly  that  the 
courts  would  declare  a  statute  void  if  in  their  opinion  it 
came  into  conflict  with  the  constitution  either  national 
or  state. 

In  1803  the  doctrine  of  judicial  nullification  was 
elaborately  presented  by  the  United  States  Supreme 
Court  and  in  such  a  manner  as  to  settle  definitely  the 
question,  so  far  at  least  as  the  federal  judiciary  is  con- 
cerned, and  to  admit  of  practically  no  doubt  in  the 
future.  We  have  seen  that  at  least  eight  states,  Vir- 
ginia, New  Jersey,  New  York,  Rhode  Island,  North 
Carolina,  South  Carolina,  Pennsylvania  and  Maryland, 
and  possibly  Massachusetts  if  we  include  a  doubtful  case, 
had  asserted,  prior  to  1803,  both  the  power  and  duty  of 
the  courts  to  compare  the  fundamental  law  and  a  statute 
and  nullify  the  latter  should  they  deem  a  conflict  existed. 
The  doctrine  had  been  asserted  more  or  less  definitely 
in  about  fifteen2  cases  but  in  only  eight  of  these,  Holmes 
v.  Walton,3  Rutgers  v.  Waddington,4  Trevett  v.  Weeden.5 
Kampfer  v.  Hawkins,6  Den  v.  Singleton,7  Page  v.  Pendle- 

1  2  Hay  wood,  227. 

"  Seventeen  cases  are  mentioned  in  the  preceding  discussion,  but 
scarcely  enough  is  known  regarding  two,  the  Phillips  case  of  Virginia, 
supra,  p.  13,  and  Taylor  v.  Reading  in  New  Jersey,  supra,  p.  2Q,  to 
justify  any  definite  statements. 

3  See  supra,  p.  13.          4  See  supra,  p.  18.          3  See  supra,  p.  20. 
fi  See  supra,  p.  26.  "  See  supra,  p.  22. 


S 


32  UNCONSTITUTIONAL  LEGISLATION  [I26 

ton,1  Bowman  v.  Middleton,2  and  Ogden  v.  Witherspoon 
was  a  statute  really  in  whole  or  in  part  held  void  and 
the  court  actually  exercised,  in  fact  if  not  in  name,  the 
power  it  claimed.3  We  have  already  seen  what  hap- 
pened to  the  judges  in  the  Rhode  Island  case;  the 
reception  which  the  judgment  in  the  Rutgers  v.  Wad- 
dington  case  had ;  that  likewise  the  decision  in  Holmes 
v.  Walton  was  received  with  protest  though  perhaps  of  a 
less  violent  nature  than  in  any  of  the  preceding.  The 
court  in  Den  v.  Singleton  rendered  a  decision  which  was 
roundly  denounced,  but  the  Virginia  court  seems  to 
have  escaped  censure  when  it  attempted  to  apply  its 
theory.  In  one  of  these  latter  cases,  Kampferz/.  Hawkins 
the  question  was  only  that  of  the  technical  standing 
of  the  judiciary  itself  in  which  the  public  can  not  be  ex- 
pected to  have  much  interest.  History  offers  no  great 
support  to  the  contention  that  in  early  times  the  people 
quietly  acquiesced  in  the  judicial  power  to  declare  laws 
unconstitutional  when  that  power  was  actually  exercised 
in  cases  affecting  the  public. 

One  of  the  most  remarkable  facts  connected  with  the 
position  of  the  courts  is  that  so  many  of  them  in  a  rela- 
tively short  space  of  time  claimed  the  power  and  claimed 
it  aggressively  and  boldly,  as  the  previous  cases  illus- 
trate. In  six  out  of  fifteen  instances  in  which  the  state 
courts  had  maintained  they  had  power  to  declare  statutes 
void,  the  opinions  expressed  on  this  delicate  and  im- 
portant point  were  in  no  way  essential  to  the  decision 
rendered.  In  these  cases  there  was  an  opportunity,  not 
a  necessity,  for  the  courts  to  declare  their  powers,  and 

1  See  supra,  p.  25.  2  See  supra,  p.  24. 

3  In  the  case  of  the  judges,  supra,  p.  33,  the  statute  was  declared  to 
be  in  conflict  with  the  constitution,  but  this  declaration  was  made  in  an 
address  to  the  legislature  and  not  in  a  formal  opinion. 


EARLY  ATTITUDE  OF  THE  STATE  COURTS 


33 


apparently  at  that  time  they  never  neglected  such  an  op- 
portunity.1 More  than  this,  at  least  so  far  as  rendered 
opinions  indicate,  they  were  not  following  the  precedents 
of  sister  states  for,  with  the  exception  of  Virginia  in  one 
case,3  no  court  cited  a  precedent  but  worked  out  the 
idea  as  an  original  doctrine.  Thus  the  principle  that  the 
courts  can  hold  a  statute  void  when  in  their  opinion  it 
conflicts  with  the  written  constitution  grew  up  separately 
and  nearly  contemporaneously  in  more  than  half  the  states. 

Also  one  is  struck  by  the  aggressiveness  and  confi- 
dence of  the  judiciary  almost  from  the  beginning  of 
national  independence.  The  courts  proclaimed  in  no  un- 
certain tones  that  they  were  the  special  protectors  and 
guardians  of  the  constitution  ;  that  it  was  their  duty  to 
guard  against  an  executive  and  legislative  despotism, 
seemingly  assuming  a  judicial  infallibility  and  seldom  ex- 
pressing any  such  fear,  as  was  later  expressed  by  a  justice 
of  the  United  States  Supreme  Court,3  that  such  action 
might  result  in  a  ''judicial  despotism." 

Moreover,  the  courts  assumed,  at  least  impliedly,  that 
while  both  the  legislative  and  executive  branches  of  the 

1  The  tendency  to  convert  the  ideas  of  the  judges  into  bench-made  law 
by  inserting  those  ideas  in  opinions  in  which  they  are  not  necessary  to 
the  decision  is  still  apparent.     In  the  Standard  Oil  and  Tobacco  Trust 
cases,  the  Supreme  Court  of  the  United  States  in  effect  wrote  the  word 
"unreasonable"  in  the  Anti-Trust  Act.     The  necessity  of  the  inser- 
tion of  this  in  the  decision  is  thus  indicated  by  Justice  Harlan:  "Let 
me  say,  also,  that  as  we  all  agree  that  the  combination  in  question  was 
illegal  under  any  construction  of  the  Anti-Trust  Act,  there  was  not  the 
slightest  necessity  to  enter  upon  an  extended  argument  to  show  that  the 
act  of  Congress  was  to  be  read  as  if  it  contained  the  word  '  unreasonable  ' 
or  'undue'.     All  that  is  said  in  the  courts'  opinion  in  support  of  that 
view  is,  I  say  with  respect,  obiter  dicta,  pure  and  simple".     Dissenting 
opinion,  U.  S.  v.  American  Tobacco  Co.,  221  U.  S.  193. 

2  Kampfer  v.  Hawkins,  supra,  p.  26. 

3  Justice  Clifford  dissenting  in  Loan  Association  v,  Topeka,  20  Wall. 
667. 


34  UNCONSTITUTIONAL  LEGISLATION  [128 

government,  particularly  the  former,  are  quite  prone  to 
overstep  the  bounds  of  their  constitutional  authority, 
they,  the  courts,  will  not  do  so,  and  that  no  check  is 
needed  to  keep  them  within  prescribed  limits. 

Also  in  these  early  cases,  while  the  courts  stoutly  as- 
serted and  insisted  that  they  were  following  the  consti- 
tution, there  is  not  a  single  claim  in  any  case  that  the 
courts  were  exercising  a  power  specifically  given  them 
by  the  constitution.  Nor  is  there,  with  the  single  ex- 
ception of  the  Kampfer  v.  Hawkins  case,  in  which  the 
Federalist  is  cited  (and  which  refers  to  the  United  States 
and  not  the  state  constitution),  any  proof  or  attempted 
proof  that  such  power  was  intended  by  the  framers  of 
the  constitution  involved.  The  courts  were  exceedingly 
zealous  that  the  legislature  should  keep  strictly  within  its 
constitutional  limits,  yet  since  the  two  branches  are  sup- 
posedly co-ordinate  and  of  equal  power,  the  means  which 
the  courts  themselves  used  had  no  firmer  constitutional 
footing  than  the  very  acts  of  the  legislature  which  they 
were  controlling. 

It  is  difficult  to  find  in  history  such  an  example  of  the 
assumption  of  power  on  the  part  of  any  branch  of  the 
government,  and  this  is  the  more  remarkable  because 
found  in  a  republic.  It  is  certainly  a  compliment  to  the 
wisdom  and  efficiency  of  the  judiciary  of  this  country 
that  it  can  claim  such  powers  and  exercise  them  to  such 
an  extent  and  yet  escape  with  no  more  censure  than  the 
courts  of  this  nation  have  received. 


CHAPTER  II 

ATTITUDE  OF  THE  SUPREME  COURT  OF  THE  UNITED 
STATES  TOWARDS  DECLARING  STATUTES  UNCON- 
STITUTIONAL AS  INDICATED  BY  EXPRES- 
SIONS IN  THE  COURT'S  OPINIONS. 

THE  previous  chapter  traces  the  development  of  the 
doctrine  that  the  courts  can  declare  a  statute  null  and 
void  if  they  deem  it  in  conflict  with  the  written  consti- 
tution, up  to  the  time  this  power  was  definitely  asserted 
and  exercised  by  the  Supreme  Court  of  the  United  States 
in  Marbury  v.  Madison,1  in  February,  1803.  But  even 
the  fact  that  the  highest  court  of  the  land  proclaimed 
and  exercised  this  power  did  not  altogether  prevent 
censure  and  indignation  when  the  same  power  was  exer- 
cised by  the  state  courts,  for  after  1803  there  were  pro- 
tests, memorials  and  even  impeachment  proceedings 
when  the  latter  courts  thwarted  the  will  of  the  state 
legislatures.2  Although  these  local  instances  may  be 
interesting  and  throw  further  light  on  the  manner  in 
which  some  of  the  claims  of  the  judiciary  were  received 
by  the  public  yet  they  are  not  within  the  scope  of  this 
discussion,  which  will  hereafter  be  confined  entirely  to 
consideration  of  the  doctrine  of  nullifying  laws  as  it 
appears  in  the  decisions  of  the  Supreme  Court  of  the 
United  States  or  in  the  opinions  of  the  Justices  of  that 
Court. 

1  i  Cranch  137. 

2  See  Baldwin,  American  Judiciary,  p.  108  et.  seg. 

129]  35 


36  UNCONSTITUTIONAL  LEG  IS  LA  TION  [  T  30 

Before  Chief  Justice  Marshall  had  definitely  asserted 

/this  power  for  the  United  States  Supreme  Court,  it  had 

/  been  suggested  to,  and  argued  before,  the  court  and  the 

\  Justices  had  expressed  their  opinions  on  the  question  in 

a  more  or  less  direct  and  official  manner. 

In  discussing  the  topic  of  the  power  of  the  federal 
courts  to  nullify  a  statute  because  of  constitutional  con- 
flict,— there  always  appears  the  moot  question  whether  the 
framers  of  the  constitution  really  did  expect  the  courts 
to  exercise  the  power  which  they  afterwards  claimed. 
One  thing  is  of  course  obvious — the  power  is  not  spe- 
cifically given  in  the  constitution  and  if  it  is  there  at  all 
it  is  one  of  those  implied  powers  which  the  courts  have 
worked  out  in  the  last  century  and  a  quarter  with  so 
much  industry.  Some  of  the  more  prominent  of  the 
members  of  the  Constitutional  Convention  made  state- 
ments to  the  effect  that  the  courts  were  expected  to 
exercise  this  power,1  but  the  majority  of  them  are  silent 
on  this  point,  and  we  have  no  proof  other  than  certain  cir- 
cumstantial evidence  that  they  acquiesced  in  such  an  im- 
portant and  novel  doctrine.  But  however  useful  for  cer- 
tain purposes  it  might  be  if  we  were  able  to  determine 
exactly  what  the  framers  and  supporters  of  the  constitu- 
tion thought  on  this  important  point,  such  information 
would  have  little  contemporaneous  bearing  on  the  early 
judicial  opinions  regarding  unconstitutional  legislation. 
The  courts  when  they  worked  out  the  doctrine  did  not 
base  their  asserted  power,  so  far  as  any  thing  in  their 
opinions  indicates,  on  the  ground  that  it  was  any  occult 
or  hidden  authority  given  or  intended  to  be  given  by  the 
framers  of  the  constitution.  It  is  true  of  course  the  judi- 
ciary claimed  to  find  the  power  necessarily  implied  in  the 

1  Cf.  Beard,  The  Supreme  Court  and  the  Constitution,  especially  ch.  ii ; 
Dougherty,  Power  of  Federal  Judiciary  over  Legislation;  Roe,  Our 
Judicial  Oligarchy. 


ATTITUDE  OF  THE  SUPREME  COURT 


37 


constitution,  but  in  few  or  none  of  the  arguments  do  the 
courts  attempt  to  justify  their  position  by  quoting  the 
framers  of  the  constitution,  or  citing  constitutional 
documents  originating  immediately  prior  to  the  actual 
formation  of  the  United  states.1  The  courts  were 
apparently  willing  to  rest  their  case  on  the  constitution 
itself  and  did  not  seek  exterior  proof  to  sustain  them  in 
their  position. 

The  nullification  of  an  act  of  the  legislature  is  presum- 
ably a  serious  and  delicate  affair  and  the  exercise  of  a 
power  which  the  courts  will  use  but  sparingly.  Has  the 
Supreme  Court  of  the  United  States  always  recognized 
this  ?  Some  light  may  perhaps  be  thrown  on  this  sub- 
ject and  some  idea  of  the  attitude  of  the  court  towards 
the  question  may  be  gained  by  a  study  and  comparison 
of  the  language  used  by  this  tribunal  at  different  times, 
when  approaching  this  momentous  subject.  Since  the 
court  obviously  stands  in  quite  a  different  relation  to 
the  legislatures  of  the  states  and  the  Congress  of  the 
United  States,  it  will  be  necessary  to  divide  the  dis- 
cussion into  two  sections,  the  first  taking  up  the  cases 
in  which  the  validity  of  a  federal  statute  was  questioned 
and  the  second  dealing  with  the  same  subject  when  a 
state  statute  was  in  doubt. 

The  federal  judiciary  had  not  long  been  organized 
when  a  constitutional  question  appeared  before  it.  The 
first  contest  of  this  nature  was  Hayburn's  case  in  1790.* 
Congress  had  early  provided  that  the  federal  judges 
should  act  as  examining  magistrates  in  regard  to  military 
pensions  and  their  decisions  were  to  be  subjected  to 

1  The  only  instance,  so  far  as  the  author  is  aware,  in  which  such  docu- 
ments were  used  in  early  constitutional  cases  is  the  quotation  from  the 
Federalist  in  Kampfer  v.  Hawkins,  supra,  p.  26. 

2  2  Dallas,  409. 


\J 


38  UNCONSTITUTIONAL  LEGISLATION  [i^2 

review  by  the  Secretary  of  War.1  The  question  was 
whether  the  judges  had  the  constitutional  power  to 
act  under  these  conditions.  Although  this  case  was 
never  actually  decided  by  the  Supreme  Court,  as  Con- 
gress kindly  repealed  the  offending  act  so  as  to  relieve, 
for  the  present,  the  embarrassment  of  the  highest  trib- 
unal,2 yet  the  question  appeared  before  all  but  one3  of 
the  Supreme  Court  justices  on  circuit  and  they  were 
thus  compelled  to  express  an  opinion  on  what  was  then 
a  doubtful  question.4  These  expressions  of  opinion  are 
presumably  a  very  good  index  of  the  attitude  of  the 
judges  at  that  particular  time.  The  Circuit  Court  for 
the  District  of  Pennsylvania  consisting  of  Wilson  and 
Blair,  Justices,  and  the  District  Judge,  made  the  follow- 
ing representation  in  a  joint  letter  addressed  to  the 
President  of  the  United  States  : 

To  you  it  officially  belong-s  to  '  take  care  that  the  laws'  of  the 
United  States  '  be  faithfully  executed.'  Before  you,  there- 
fore, we  think  it  our  duty  to  lay  the  sentiments  which,  on  a 
late  painful  occasion,  governed  us  with  regard  to  an  act 
passed  by  the  legislature  of  the  Union. 

The  court  then  points  out  the  constitutional  defects  of 
the  statute  under  consideration  showing  why  it  cannot 
act  and  concludes  as  follows: 

These,  Sir,  are  the  reasons  of  our  conduct.  Be  assured  that, 
though  it  became  necessary,  it  was  far  from  being:  pleasant. 
To  be  obliged  to  act  contrary,  either  to  the  obvious  directions 

1  i  U.  S.  Statutes,  243.  '*  i  U.  S.  Statutes,  324. 

3  The  exception  was  Justice  Johnson  who  although  appointed  Novem- 
ber, 1791,  did  not  qualify  until  August,  1792,  by  which  time  the  Circuit 
Courts  had  expressed  themselves  upon  the  subject. 

4Cf.  article  by  Farrand,  American  Historical  Review,  vol.  xiii,  p.  281. 


ATTITUDE  OF  THE  SUPREME  COURT  39 

of  Congress,  or  to  a  constitutional  principle  in  our  judgment 
equally  obvious,  excited  feeling's  in  us,  which  we  hope  never 
to  experience  again. 

The  Circuit  Court  of  New  York,  consisting  of  Chief 
Justice  Jay  and  Gushing,  Justice,  and  the  District  Judge, 
after  issuing  a  statement  on  the  subject,  so  construed  the 
act  as  to  admit  what  it  considered  constitutional  pro- 
ceedings, but  the  Circuit  Court  for  the  District  of  North 
Carolina,  in  which  Justice  Iredell  sat,  found  itself  in 
greater  difficulties  and  also  addressed  a  letter  to  the 
President  of  the  United  States  : 

\Ve,  the  Judges,  now  attending  at  the  Circuit  Court  of  the 
United  States  for  the  District  of  North  Carolina,  conceive  it 
our  duty  to  lay  before  you  some  important  observations 
which  have  occurred  to  us  in  the  consideration  of  an  act  of 
Congress  lately  passed, 

We  beg:  leave  to  premise,  that  it  is  as  much  our  inclination, 
as  it  is  our  duty,  to  receive  with  all  possible  respect  every  act 
of  the  Legislature,  and  that  we  never  can  find  ourselves  in  a 
more  painful  situation  than  to  be  obliged  to  object  to  the 
execution  of  any,  more  especially  to  the  execution  of  one 
founded  on  the  purest  principle  of  humanity  and  justice, 
which  the  act  in  question  undoubtedly  is.  But  however 
lamentable  a  difference  in  opinion  really  may  be,  or  with  what- 
ever difficulty  we  may  have  formed  an  opinion,  we  are  under  the 
indispensable  necessity  of  acting  according  to  the  best  dictates 
of  our  own  judgment,  after  duly  weighing  every  consideration 
that  can  occur  to  us;  which  we  have  done  on  the  present 
occasion. 

The  extreme  importance  of  the  case,  and  our  desire  to  be 
explicit  beyond  the  danger  of  being  misunderstood,  will,  we 
hope,  justify  us  in  stating  our  observations  in  a  systematic 
manner. 

The  learned  justices  then  explain  that  the  constitution 


40  UNCONSTITUTIONAL  LEGISLA  TIOX  [  j  34 

provides  for  three  separate  and  independent  departments 
of  government ;  that  no  department  can  enroach  on  the 
sphere  of  the  other,  and  should  this  statute  be  acted 
upon  a  serious  encroachment  on  the  independence  of  the 
judiciary  would  result.  After  these  explanations  the 
address  continues  : 

These,  Sir,  are  our  reasons  for  being1  of  the  opinion,  as  we  are 
at  present,  that  this  Circuit  Court  cannot  be  justified  in  the 
execution  of  that  part  of  the  act  which  requires  it  to  examine 
and  report  an  opinion  on  the  unfortunate  cases  of  officers  and 
soldiers.  .  .  . 

The  high  respect  we  entertain  for  the  Legislature,  our  feel- 
ings as  men  for  persons  whose  situation  requires  the  earliest, 
as  well  as  the  most  effectual  relief,  and  our  sincere  desire  to 
promote,  whether  officially  or  otherwise,  the  just  and  benev- 
olent views  of  Congress,  so  conspicuous  on  the  present  as 
well  as  on  many  other  occasions,  have  induced  us  to  reflect, 
whether  we  could  be  justified  in  acting,  under  this  act,  person- 
ally in  the  character  of  commissioners  during  the  session  of 
a  court;  .... 

The  court,  however,  does  not  believe  it  can  constitution- 
ally act,  but  is  exceedingly  cautious,  and  later  asserts 
that  "  if  we  can  be  convinced  this  opinion  is  a  wrong 
one,  we  will  not  hesitate  to  act  accordingly." 

Evidently  in  1792  the  nullification  of  an  act  of  Con- 
gress was  not  an  easy  moral  task  for  the  judiciary,  and  if 
the  opinions  of  individual  justices  are  an  index  of  the 
attitude  of  the  court,  certainly  the  latter  was  in  no  way 
sure  of  its  right  or  its  power  to  nullify  an  act  of  the 
co-ordinate  legislative  branch. 

The  question  of  the  constitutionality  of  a  federal 
statute  was  first  really  presented  to  the  Supreme  Court 
of  the  United  States  in  United  States  v.  Todd '  in  1792. 
1  13  Howard,  52. 


I35J  ATTITUDE  OF  THE  SUPREME  COURT  4I 

There  is  no  complete  record  of  this  case  either  printed 
or  in  manuscript,  the  only  official  document  being  a 
certified  copy  of  an  extract  of  the  judgment  and  a  review 
of  the  case  by  the  Supreme  Court,  printed  as  a  note  to  a 
decision  rendered  almost  sixty  years  after  the  origina 
case  was  decided.1  Consequently  this  case  throws  no 
light  on  the  attitude  of  the  court  regarding  its  power  to 
nullify  statutes,  although  it  seems  to  have  refused  to  ex- 
ercise what  it  considered  unconstitutional  jurisdiction. 

The  next  expression  of  opinion  on  this  question  by  a 
justice  of  the  Supreme  Court,  is  that  of  Justice  Paterson 
sitting  on  circuit  in  the  Pennsylvania  District  in  1795. 
Justice  Paterson  in  a  charge  to  a  jury  in  Vanhorn  v. 
Dorrance,2  in  which  a  state  statute  was  being  reviewed, 
though  the  justice's  remarks  are  general  in  their  nature 
and  not  limited  to  the  states,  compares  the  relative  posi- 
tion of  the  English  courts  and  Parliament  and  then 
continues  : 

Besides,  in  England  there  is  no  written  constitution,  no  funda- 
mental law,  nothing:  visible,  nothing  real,  nothing-  certain,  by 
which  a  statute  can  be  tested.  In  America,  the  case  is  widely 
different;  every  state  in  the  Union  has  its  constitution  reduced 
to  written  exactitude  and  precision. 

....  The  constitution  is  certain  and  fixed ;  it  contains  the 
permanent  will  of  the  people,  and  is  the  supreme  law  of  the 
land  ;  it  is  paramount  to  the  power  of  the  legislature,  and  can 
be  revoked  or  altered  only  by  the  authority  that  made  it. 
The  life-giving  principle  and  the  death-doing  stroke  must 
proceed  from  the  same  hand.  What  are  legislatures? 
Creatures  of  the  constitution;  they  owe  their  existence  to  the 
constitution;  they  derive  their  powers  from  the  constitution; 

1  United  States  v,  Ferreira,  13  Howard,  39,  1851.     Also  referred  to  in 
Marburyz/.  Madison,  i  Cranch,  171. 

2  2  Dallas,  304. 


42 


UNCONSTITUTIONAL  LEGISLATION 


it  is  their  commission;  and  therefore,  all  their  acts  must  be 
conformable  to  it,  or  else  they  will  be  void  .....  The  consti- 
tution fixes  limits  to  the  exercise  of  legislative  authority,  and 
prescribes  the  orbit  within  which  it  must  move.  In  short, 
gentlemen,  the  constitution  is  the  sun  of  the  political  system, 
around  which  all  legislative,  executive  and  judicial  bodies 
must  revolve.  Whatever  may  be  the  case  in  other  countries, 
yet  in  this,  there  can  be  no  doubt,  that  every  act  of  the  legis- 
lature, repugnant  to  the  constitution  is  absolutely  void. 

This  is  a  sweeping  categorical  statement  that  every 
act  of  the  legislature  exceeding  constitutional  power  is 
bad  and  worthless.  The  learned  justice  does  not,  how- 
ever, in  any  way  attempt  to  prove  or  justify  his  assertion 
by  any  citations  of  previous  cases  nor  by  any  specific 
clause  of  the  constitution,  nor  does  he  attempt  to  show 
in  any  way  that  such  power  was  intended  by  the  framers 
of  the  constitution,  but  contents  himself  with  claiming 
that  such  doctrine  inheres  in  a  written  constitution. 

In  Hylton  v.  United  States  T  a  constitutional  question 
was  involved,  but  as  no  conflict  was  found  between  the 
statute  and  the  constitution,  the  court  did  not  make  any 
strong  statement  in  regard  to  its  power  of  nullifying  a 
statute  and  only  very  mild  expressions  of  opinion  on 
this  point  are  found.  Shortly  after  this  decision  came 
the  great  Marbury  v.  Madison2  case  in  1803  when  a  truly 
remarkable  opinion  was  written.  The  timidity  and  un- 
certainty of  the  courts  as  to  their  right  to  exercise  this 
power  were  by  this  decision  forever  banished  so  far  as 
the  federal  judiciary  was  concerned.  In  this  case  Chief 
Justice  Marshall  has  no  apologies  whatever  for  the  posi- 
tion  he  is  about  to  take,  but  assumes  that  the  power  of 
the  court  to  nullify  an  act  of  the  legislature,  if  in  the 

!3  Dallas,  171.  2i  Cranch,  137 


ATTITUDE  OF  THE  SUPREME  COURT  43 

opinion  of  the  court  that  act  exceeds  constitutional 
authority,  is  an  inevitable,  inexorable  consequence  of  a 
written  constitution  and  of  the  theory  of  the  American 
government.  As  the  Chief  Justice  remarks : 

This  theory  is  essentially  attached  to  a  written  constitution, 
and  is,  consequently,  to  be  considered  by  this  court,  as  one  of  f*^ 
the  fundamental  principles  of  our  society, 

and  he  concludes  his  opinion  with  the  following  para- 
graph: 

Thus,  the    peculiar  phraseology   of  the   Constitution   of  the 
United  States  confirms  and  strengthens  the  principle,   sup- 
posed to  be  essential  to  all  written  constitutions,  that  a  law, 
repugnant  to  the  constitution  is  void ;  and  that  courts,  as  well!  O- 
as  other  departments,  are  bound  by  that  instrument.1 

There  is  no  weakness  manifested  here,  no  hint  of  a 
feeling  of  delicacy  or  regret  in  thus  deliberately  thwart- 
ing the  expressed  will  of  Congress,  nor  is  there  any  men- 
tion whatever  of  the  supposed  fact  that  the  presumption 
is  always  in  favor  of  the  validity  of  the  statute.  If  the 
Chief  Justice  had  any  qualms  of  conscience  they  are  not 
visible  in  the  opinion,  which  is  confined  largely  to  point- 
ing out  the  limitations  of  the  legislative  body  rather  than 
indicating  any  particular  respect  for  a  co-ordinate  branch 
of  the  government.  Certainly  credit  must  be  given  to  A 
the  courage  of  the  Chief  Justice  in  trying  this  experi- 

1  Before  he  became  Chief  Justice,  in  arguing  a  case  before  the  Supreme 
Court,  Marshall  declared  that  "  The  legislative  authority  of  any  country 
can  only  be  restrained  by  its  own  municipal  constitution;  this  is  a  prin- 
ciple that  springs  from  the  very  nature  of  society;  and  the  judicial  au- 
thority can  have  no  right  to  question  the  validity  of  a  law,  unless  such  a 
jurisdiction  is  expressly  given  it  by  the  constitution."  Ware  v.  Hylton, 
3  Dall.  211. 


44  UNCONSTITUTIONAL  LEGISLATION  [^g, 

ment ;  for  considering  the  unfriendly  attitude  of  the  other 
departments  of  the  government  this  was  scarcely  a  pro- 
pitious time  for  the  court's  aggressiveness,  and  so  far  as 
any  assurances  were  concerned,  the  justices  might  have 
met  the  fate  of  the  Rhode  Island  judges  when  they  ex- 

j  perimented  with  the  same  doctrine.1 
,      In    this  case   the    Chief  Justice   avails   himself   of   no 
I  precedents  whatever,  either  state  or  national.2     He  does 
'  not  by  citation  make  use  of  any  arguments  previously 

»  presented  on  this  point,  nor  does  he  attempt  to  justify 
his  position  by  any  of  the  records  pertaining  to  the 

'  framing  and  adoption  of  the  constitution,  nor  by  any 
direct  expression  from  any  member  of  the  Convention, 
Since  the  Chief  Justice  was,  of  course,  thoroughly  famil- 
iar with  the  history  of  the  document,  if  the  records  per- 
taining thereto,  as  construed  by  contemporaries,  afforded 

i  any  substantial  basis  for  the  position  now  assumed  by 
the  court,  it  certainly  seems  fair  to  assume  that  the 
learned  and  astute  Chief  Justice  would  not  have  over- 
looked such  excellent  material  for  his  opinion. 

In  some  respects  the  action  of  the  court  in  this  case 
resembles  that  of  the  state  judiciary  in  the  earlier  cases. 
In  both  instances  the  doctrine  was  worked  out  inde- 
pendently and  separately  without  citing  precedents  even 
when  those  existed,  and  without  attempting  to  show 
any  specific  or  implied  authority,  except  such  as  neces- 
sarily inhered  in  a  written  constitution. 

Although  in  the  preceding  case  the  Chief  Justice 
seems  to  have  entertained  no  great  conception  of  the 

1  Supra,  p.  20. 

2  Both  Hayburn's  Case,  2  Dall.  409,  supra,  p.  37,  and  United  States  v. 
Todd,  13  How.  52,  supra,  p.  40,  are  referred  to  in  the  opinion,  but  the 
citations  are  used  to  support  the  argument  in  regard  to  the  writ  of  man- 
damus and  not  to  substantiate  the  constitutional  contentions.  ( 


ATTITUDE  OF  THE  SUPREME  COURT  45 

delicacy  and  solemnity  of  the  court's  action,1  we  find 
him  in  a  later  case  expressing  himself  thus : 

To  the  general  observations  made  on  this  subject,  it  will  be 
observed,  that  as  the  court  can  new:  be  unmindful  of  the 
solemn  duty  imposed  on  the  judicial  department,  when  a 
claim  is  supported  by  an  act  which  conflicts  with  the  consti- 
tution, so  the  court  carr  iiever  be  unmindful  of  its  duty  to 
obey  laws  which  are  authorized  by  that  instrument.2 

After  the  case  of  Marbury  v.  Madison  never  again  did 
Chief  Justice  Marshall  have  occasion  to  annul  a  Con- 
gressional act,  and  this  power  so  boldly  asserted  in  1803 
was  not  again  used  by  the  court  until  Scott  v.  Sandford3 
in  1856.  In  this  case  all  the  justices  expressed  opinions, 
and  eight  of  them  wrote  long  essays  on  the  question 
before  the  court  and  on  other  matters,  yet  nowhere  are 
there  found  any  expressions  of  deference  for  the  co- 
ordinate legislative  body  which  passed  the  act,  no  state- 
ment that  the  presumption  is  in  favor  of  the  validity 
of  a  statute,  nor  any  indication  of  regret  that  the  court 
is  thus  drawn  into  conflict  with  Congress.  The  court 
had  successfully  defied  Congress  in  1803  and  presumably 
it  could  again  assert  its  claimed  power. 

In  the  succeeding  cases,  Gordon  v.  United  States,4  Ex 

1  As  indicated  by  the  following  language:  "  The  question  whether  an 
act,  repugnant  to  the  Constitution,  can  become  the  law  of  the  land  is  a 
question  deeply  interesting  to  the  United  States;  but,  happily,  not  of  an 
intricacy  proportioned  to  its  interest.  It  seems  only  necessary  to  recog- 
nize certain  principles  supposed  to  have  been  long  and  well  established 
to  decide  it."  Considering  the  temper  and  attitude  of  the  Democratic 
administration  at  the  time  this  decision  was  rendered,  possibly  the  Chief 
Justice  did  not  really  take  this  matter  so  tranquilly  as  the  above  language 
might  indicate. 

*  United  States  v.  Fisher,  2  Cranch,  396. 

3 19  Howard,  393.  42  Wall.,  561;  also  117  U.  S.,  697. 


46  UNCONSTITUTIONAL  LEGISLATION  [I4O- 

parte  Garland,1  and  Reichard  v.  Felps,2  the  opinion  of 
the  court  makes  no  mention  of  the  delicacy  of  the  ques- 
tion which  it  is  considering  nor  any  expression  of  regret 
or  deference,  nor  is  there  anything  in  the  opinions  to 
indicate  that  the  co'Cu't  presumed  that  the  statute  was 
valid. 

In  Hepburn  v.  Griswold,3  ri-te  ^itxt  case  in  chronolog- 
ical order,  the  court  recognizes  its  ^culiar  position,  for 
in  approaching  the  question  of  constitutional  validity  it 
states : 

The  delicacy  and  importance  of  this  question  has  not  been 
overstated  in  the  argument.  This  court  always  approaches 
the  consideration  of  questions  of  this  nature  reluctantly;  and 
its  constant  rule  of  decision  has  been,  and  is,  that  acts  of  Con- 
gress must  be  regarded  as  constitutional,  unless  clearly  shown 
to  be  otherwise. 

After  discussing  the  question  and  stating  that,  "  Not 
every  act  of  Congress,  then,  is  to  be  regarded  as  the 
I     supreme  law  of  the  land,;  nor  is  it  by  every  act  of  Con- 
gress that  the  judges  are  bound,"  the  opinion  continues  :. 

When,  therefore,  a  case  arises  for  judicial  determination,  and 
the  decision  depends  on  the  alleged  inconsistency  of  a  legisla- 
tive provision  with  the  fundamental  law,  it  is  the  plain  duty  of 
the  court  to  compare  the  act  with  the  Constitution,  and  if  the 
former  can  not,  upon  a  fair  construction,  be  reconciled  with 
the  latter,  to  give  effect  to  the  Constitution  rather  than  the 
statute.  This  seems  so  plain  that  it  is  impossible  to  make  it 
plainer  by  argument.  If  it  be  otherwise  the  Constitution  is 
not  the  supreme  law. 

The  court  then,  by  comparing  the  statute  with  the  con- 
stitution determines  that  it  is  bad  in  part  and  having  no- 

'4  Wall.,  333.  *  26  Wall.,  160.  '8  Wall.,  603. 


141  ]  ATTITUDE  OF  THE  SUPREME  COURT  47 

precedents  to  cite,  original  reasoning  is  depended  upon 
to  show  the  conflict. 

In  the  three  following  cases,  United  States  v.  DeWitt,1 
The  Justices  v.  Murray,2  The  Collector  v.  Day.3  the  court 
shows  no  hesitancy  in  nullifying  a  federal  statute,  makes 
no  reference  to  the  deference  due  to  Congress  nor  does 
it  in  any  manner  indicate  that  the  presumption  is  in 
favor  of  the  validity  of  the  statute.  In  the  first  of  the 
three  cases  the  court  bases  its  reasons  for  nullification 
on  an  examination  of  the  statute  and  constitution  and 
simply  states  that  the  principle  applied  "  has  been  so 
fully  explained  and  supported  on  former  occasions,  that 
we  think  it  unnecessary  to  enter  again  upon  the  discus- 
sion." In  the  Justices  v.  Murray  the  court  depends 
almost  entirely  upon  original  reasoning  to  show  the  fatal 
defects  of  the  law,  having  but  a  few  remarks  in  the  opin- 
ion of  a  single  previous  case  to  cite  as  precedent.4  In 
the  third,  the  statute  is  nullified  and  the  decision  is  justi- 
fied and  upheld  very  largely  by  citing  previous  Supreme 
Court  decisions.  In  United  States  v.  Klein,5  the  court 
insists  that  the  paragraph  of  the  statute  under  discus- 
sion and  which  was  nullified  must  have  gotten  in  the 
statute  by  "inadvertence."  The  court  shows  no  hesi- 
tancy in  correcting  this  "  inadvertence "  of  another 
branch  of  the  government,  but  simply  asserts  that  it  is 
sure  that  it  is  fulfilling  the  deliberate  will  of  the  legis- 
lative body  by  refusing  to  enforce  this  part  of  the  statute, 
but  does  not  explain  how  it  reaches  this  conclusion.6 

lg  Wall.,  41.  29  Wall.,  274.  3ii  Wall.,  113. 

4 Parsons  v.  Bedford,  3  Peters,  447.  5i3  Wall.,  128. 

6  The  portion  of  the  statute  annulled  in  this  case  was  a  rider  attached 
to  an  appropriation  bill  of  1870.     16  U.  S.  Statutes,  235. 


48  UNCONSTITUTIONAL  LEGISLATION  [I42 

v/  In  United  States  v.  Fox,1  a  Congressional  act  was 
[nullified  with  little  or  no  apparent  reluctance  and  no 
mention  of  the  fact  that  a  statute  is  good  unless  a  clear 
repugnance  can  be  shown  between  it  and  the  constitu- 
tion. In  the  Trade  Mark  Cases,2  the  court  recognizes 
definitely  that  it  is  dealing  with  a  coordinate  branch  of 
the  government,  for  it  explains : 

When  this  court  is  called  on  in  the  course  of  the  administra- 
tion of  the  law  to  consider  whether  an  act  of  Congress,  or  of 
any  other  department  of  the  government,  is  within  the  consti- 
tutional authority  of  that  department,  a  due  respect  for  a 
co-ordinate  branch  of  the  government  requires  that  we  shall 
decide  that  it  has  transcended  its  powers  only  when  that  is  so 
plain  that  we  can  not  avoid  the  duty. 

In  such  cases  it  is  manifestly  the  dictate  of  wisdom  and 
judicial  propriety  to  decide  no  more  than  is  necessary  in  the 
case  in  hand.  That  such  has  been  the  uniform  course  of  this 
court  in  regard  to  statutes  passed  by  Congress  will  readily 
appear  to  any  one  who  will  consider  the  vast  amount  of  argu- 
ment presented  to  us  assailing  them  as  unconstitutional,  and 
he  will  count,  as  he  may  do  on  his  fingers,  the  instances  in 
which  this  court  has  declared  an  act  of  Congress  void  for 
want  of  constitutional  power. 

After  thus  denning  its  position  the  court  found  the 
statute  under  consideration  void. 

In  United  States  v.  Harris3  the  court  states: 

Proper  respect  for  a  co-ordinate  branch  of  the  government 
requires  the  courts  of  the  United  States  to  give  effect  to  the 
presumption  that  Congress  will  pass  no  act  not  within  its 
constitutional  power.  This  presumption  should  prevail  unless 
the  lack  of  constitutional  authority  to  pass  an  act  in  question 
is  clearly  demonstrated.  While  conceding  this,  it  must, 

!9S  U.  S.  670.  2ioo  U.  S.  82.  :5io6  U.  S.,  629. 


ATTITUDE  OF  THE  SUPREME  COURT  49 

nevertheless,  be  stated  that  the  government  of  the  United 
States  is  one  of  delegated,  limited  and  enumerated  powers. 
.  .  .  Therefore  every  valid  act  of  Congress  must  find  in  the 
Constitution  some  warrant  for  its  passage. 

The  court  could  not  find  any  constitutional  warrant  for 
the  statute  discussed  in  this  case  and  consequently  it 
was  null  and  void.  After  the  above  there  follows  a 
series  of  cases1  in  which  federal  statutes  were  annulled, 
all  of  them  important  and  in  two  of  them,  The  Civil 
Rights  Cases 2  and  Pollock  v.  Farmers'  Loan  and  Trust  , 
Co.,3  very  grave  questions  were  at  issue;  but  with  the 
exception  of  these  latter  two  the  court  manifests  no 
hesitancy  in  nullifying  Congressional  acts  and  has  noth- 
ing to  say  regarding  the  deference  due  the  national 
legislature  but  held  the  statutes  void  without  any 
apparent  judicial  regret.  In  the  two  cases  indicated 
above,  which,  if  judged  from  the  standpoint  of  public 
interest,  are  as  important  probably  as  any  that  have  ever! 
been  before  the  court,  some  slight  reference  was  made  j 
to  the  peculiar  nature  of  the  cases  under  discussion.  In 
the  Civil  Rights  Cases,  in  which  the  highest  judicial 
tribunal  was  about  to  oppose  its  own  judgment  to  that 
of  Congress  on  an  exceedingly  important  political  ques- 
tion, the  court  refers  to  its  relations  to  the  legislative 
body  in  these  words  : 

We  .  .  .  have  felt,  in  all  its  force,  the  weight  of  authority 
which  always  invests  a  law  that  Congress  deems  itself  com- 
petent to  pass.  But  the  responsibility  of  an  independent 
judgment  is  now  thrown  upon  this  court ;  and  we  are  bound 
to  exercise  it  according  to  the  best  lights  we  have. 

In  Pollock  v.  Farmers'  Loan  and  Trust  Co.,  in   which 

1  See  Appendix  I  for  list  of  cases. 

2iogU.  S.,3-  3 157  U.S.,  429,  and  158  U.  S.,6oi. 


50  UNCONSTITUTIONAL  LEGISLATION 

the  court  took  an  unexpected  position  and  partially  an- 
nulled the  recently  enacted  federal  income  tax  statute,  it 
prefaced  its  discussion  with  : 

Since  the  opinion  in  Marbury  v.  Madison,  was  delivered,  it  has 
not  been  doubted  that  it  is  within  judicial  competency,  by 
express  provisions  of  the  Constitution  or  by  necessary  refer- 
ence and  implication,  to  determine  whether  a  given  law  of  the 
United  States  is  or  is  not  made  in  pursuance  of  the  Constitu- 
tion, and  to  hold  it  valid  or  void  accordingly.1 

Then  after  quoting  from  Chief  Justice  Marshall  in  the 
case  cited,  this  portion  of  the  discussion  concludes  as 
follows: 

Necessarily  the  power  to  declare  a  law  unconstitutional  is 
always  exercised  with  great  reluctance;  but  the  duty  to  do 
so  in  a  proper  case,  can  not  be  declined,  and  must  be  dis- 
charged in  accordance  with  the  deliberate  judgment  of  the 
tribunal  in  which  the  validity  of  the  enactment  is  directly 
drawn  in  question. 

Instead  of  ignoring  Congress  or  treating  it  with  slight 
respect  or  consideration,  the  court  in  Fairbank  v. 
United  States,2  in  1901  came  back  to  earlier  principles 
by  opening  its  opinion  with  the  following  statement  of 
its  position: 

The  constitutionality  of  an  act  of  Congress  is  a  matter  always 
requiring  the  mostlcareful  consideration.  The  presumptions 
are  in  favor  of  constitutionality,  and  before  a  court  is  justified 
in  holding  that  the  legislative  power  has  been  exercised 
beyond  the  limits  granted,  or  in  conflict  with  restrictions  im- 
posed by  the  fundamental  law,  the  excess  or  conflict  should 
be  clear.  And  yet,  when  clear,  if  written  constitutions  are  to 
be  regarded  as  of  value,  the  duty  of  the  court  is  plain  to  up- 

1 157  U.S.,  554-  '181  U.  S.  283, 


I45]  ATTITUDE  OF  THE  SUPREME  COURT  51 

hold  the  Constitution,  although  in  so  doing-  the  legislative 
enactment  falls. 

It  is  quite  remarkable  that  the  court  feels  it  incumbent 
upon  itself  at  this  late  date  to  support  the  above  para- 
graph by  citations,  and  yet  more  than  a  page  is  devoted 
to  extracts  from  preceding  cases,  mostly  from  Marbury 
v.  Madison,  to  justify  a  power  which  the  court  had  been 
using,  with  no  great  hesitation,  whenever  it  considered 
that  occasion  demanded,  for  almost  a  century. 

In  the  decade  following  the  decision  of  Fairbank  v. 
United  States,  the  court  has  in  several  cases1  felt  called 
upon  to  nullify  Congressional  acts.  Yet,  with  but  one 
exception,  in  none  of  these  cases  has  the  court  expressed 
any  hesitancy  nor  given  any  indication  of  the  respect  it 
is  supposed  to  have  for  Congress,  the  one  exception  to 
the  general  rule  being  the  Employers'  Liability  Cases, 
in  which  the  court  stated  in  an  indifferently  formal  man- 
ner that,  "Of  course,  if  it  can  be  lawfully  done,  our  duty 
is  to  construe  the  statute  so  as  to  render  it  constitu- 
tional;" nor  has  there  been  in  any  of  the  cases  mention 
of  the  fact  that  the  presumption  is  always  in  favor  of 
the  validity  of  the  statute.  In  most  cases  it  has  been 
left  to  the  dissenting  justices  to  bring  out  strongly  the 
fact  that  an  act  of  Congress  is  being  nullified,  that  the 
court  must  have  respect  for  the  formally  expressed  will 
of  the  national  legislature,  and  that  the  presumption  is 
always  most  certainly  in  favor  of  the  validity  of  the 
statute.  But  the  court  itself,  after  it  has  apparently  de- 
termined to  nullify  a  statute,  usually  fails  to  refer  to 
this  presumption,  and  the  "painful  difficulty"  with  which 
the  early  justices  performed  this  task  seems  to  have 
transformed  itself  into  a  habit  which  can  be  exercised 
by  the  court  quite  easily  and  without  a  twinge. 
1  See  Appendix  I  for  list  of  cases. 


52  UNCONSTITUTIONAL  LEGISLATION 

In    the  preceding  section  the   discussion  is   confined,   \ 
J  with   but    one   exception,   to  those    cases   in    which  the   j 
I  validity   of  a   federal    statute  was    discussed    before    the 
Supreme  Court  of  the  United  States,  or  to  those  cases 
in  which  the  justices  of  that  court  expressed  themselves 
on  the  right  or  duty  of   the   judiciary  to    nullify   such   j 
statutes  if  the  latter  appeared  to  conflict  with  the  con- 
stitution.     There   are    but   comparatively   few   cases    in   ! 
which   federal    laws   have   been   nullified    and    the    great   j 
bulk   of   statutes   which   have   been   overturned   by   the 
Supreme  Court  are  the  enactments  of  the  state  legisla-  j 
tures  rather  than  those  of  Congress.     An   attempt  will 
therefore  be  made  to   ascertain  the  attitude  which  the 
court  has  had  at  various  times  towards  nullifying  state 
statutes,  so  far  as  this  attitude  may  be  ascertained  from 
the  language  used  in  approaching  the  question. 

One  of  the  very  earliest  cases  in  which  the  legal  force  j 
of    a   state  statute  was  questioned  before  the  Supreme  j 
Court  of  the  United  States  was  Ware  v.  Hylton.1     In  ] 
this  case  a  Virginia  statute,  passed  prior  to   1789,  con-  1 
fiicted  with  a  subsequently  ratified  treaty  of  the  United 
States  which,  under  the  constitution,  had  become  part  j 
of  the  "  supreme  law  of  the  land."     The  court  was  thus 
confronted  with  the  delicate  task  of  nullifying  the  state  : 
enactment.     The  opinions  were  delivered  seriatim    and 
the  question  was  approached  apparently  with  the  greatest  j 
reluctance.     Justice  Chase  expressed  himself  thus: 

I  have  diligently  attended  to  the  arguments  of  the  learned  j 
counsel,  who  debated  the  several  questions  that  were  made  in  ] 
the  cause,  with  great  legal  ability,  ingenuity  and  skill.  I  j 
have  given  the  subject,  since  the  argument,  my  deliberate 

1  3  Dallas,  199. 


147]  ATTITUDE  OF  THE  SUPREME  COURT  53 

investigation,  and  shall,  as  briefly  as  the  case  will  permit, 
deliver  the  result  of  it  with  great  diffidence,  and  the  highest 
respect  for  those  who  entertain  a  different  opinion.  I  solicit, 
and  hope  I  shall  meet  with  a  candid  allowance  for  the  many 
imperfections  which  may  be  discovered  in  observations  hastily 
drawn  up,  in  the  intervals  of  attendance  in  court,  and  the 
consideration  of  other  very  important  cases. 

After  making  this  plea  for  indulgence  on  the  part  of  the 
reader  or  the  public  the  Justice  asserts,  ''  I  have  already 
proved  that  a  treaty  can  totally  annihilate  any  part  of  the 
constitution  of  any  of  the  individual  states,  that  is  con- 
trary to  a  treaty,"  and  "  Our  federal  constitution  estab- 
lishes the  power  of  treaty  over  the  constitution  and 
laws  of  any  of  the  states." 

Justice  Iredell  *  states  his  opinion  as  follows: 

In  delivering  my  opinion  in  this  important  case,  I  feel  myself 
deeply  affected  by  the  awful  situation  in  which  I  stand.  The 
uncommon  magnitude  of  the  subject,  its  novelty,  the  high 
expectation  which  it  has  excited,  and  the  consequences  with 
which  a  decision  may  be  attended,  have  all  impressed  me  with 
their  fullest  force.  I  have  trembled  lest  by  an  ill  informed  or 
precipitate  opinion  of  mine,  either  the  honor,  or  the  safety  of 
the  United  States  should  suffer  or  be  endangered  on  the  one 
hand,  or  the  just  rights  and  proper  security  of  any  individual 
on  the  other.  In  endeavoring  to  form  the  opinion  I  shall 
now  deliver,  I  am  sure  that  the  great  object  of  my  heart  has 
been  to  discover  the  true  principles  upon  which  a  decision 
ought  to  be  given,  unbiased  by  any  other  consideration  than 
the  most  sacred  regard  to  justice.  Happy  should  I  have 
thought  myself,  if  I  could  as  confidently  have  relied  on  a 
strength  of  abilities  equal  to  the  greatness  of  the  occasion. 

The  court  held  that  the  Virginia  statute  was  in  conflict 

1  Justice  Iredell  had  heard  the  case  while  on  circuit,  and  now  only  re- 
read the  opinion  delivered  in  the  circuit  court. 


li- 


54  UNCONSTITUTIONAL  LEGISLATION  [148 

with  the  United  States  treaty  and  consequently  invalid. 
This  decision,  however,  was  only  reached  after  a  hard 
moral  battle,  by  means  of  which  the  justices  emerged  from 
the  "awful  position"  in  which  they  had  been  placed. 

In  a  case1  decided  four  years  later,  1798,  the  court  was 
asked  to  pass  on  the  constitutional  validity  of  a  state  stat- 
ute, in  this  instance  one  enacted  by  Connecticut  in  1795. 
Justice  Iredell  in  the  course  of  his  opinion  stated : 

f  any  act  of  Congress,  or  of  the  legislature  of  a  State,  violates 
hose  constitutional  provisions,  it  is  unquestionably  void  ;  i 
hough,  I  admit,  that  as  the  authority  to  declare  it  void  is  of  j 
delicate  and  awful  nature,  the  court  will  never  resort  to  that  ; 
uthority,  but  in  a  clear  and  urgent  case.  If,  on  the  other  j 
land,  the  legislature  of  the  Union,  or  the  legislature  of  any  : 

member  of  the  Union,  shall  pass  a   law,  within  the  general  i 
cope  of  their  constitutional  power,  the  court  cannot  pronounce  j 
t  to  be  void,  merely  because  it  is,  in  their  judgment,  contrary  j 
o  the  principles  of  natural  justice.     The  ideas  of  natural 
ustice  are  regulated  by  no  fixed  standard ;  the  ablest  and  the  i 
urest  men  have  differed  upon  the  subject ;  and  all  that  the  \ 
ourt  could  properly  say,  in  such  an  event,  would  be,  that  the 
egislature,  possessed  of  an  equal  right  of  opinion,  had  passed  ' 
n   act  which,  in  the  opinion  of  the  judges,  was  inconsistent 

with  the  abstract  principles  of  natural  justice.2 

In  a  later  case,3  in  which  it  was  alleged  that  a  statute  j 
enacted  by  Georgia  in  1782  was  unconstitutional,  Justice  j 
Chase  expressed  his  opinion : 

Although  it  is  alleged  that  all  acts  of  the  legislature,  in  direct  I 
opposition  to  the  prohibitions  of  the  constitution,  would  be  j 
void,  yet  it  still  remains  a  question,  where  the  power  resides  J 
to  declare  it  void.  It  is,  indeed,  a  general  opinion,  it  is  ex-  J 

'Calder  v.  Bull,  3  Dallas,  386. 

2  Cf.  Loan  Association  v.  Topeka,  20  Wall.,  655,  662. 

3  Cooper  v.  Telfair,  4  Dallas,  14. 


149]  ATTITUDE  OF  THE  SUPREME  COURT  55 

pressly  admitted  by  all  this  bar,  and  some  of  the  judges  have, 
individually,  in  the  circuits,  decided  that  the  Supreme  Court 
can  declare  an  act  of  Congress  to  be  unconstitutional  and, 
therefore,  invalid ;  but  there  is  no  adjudication  of  the  Supreme 
Court  itself  on  this  point. 

Justice  Paterson  thought,  "That  to  authorize  this  court 
to  pronounce  any  law  void,  it  must  be  a  clear  and  un- 
equivocal breach  of  the  constitution,  not  a  doubtful  and 
argumentative  application." 

In  these  cases  the  justices  did  not  find  themselves  in 
any  embarrassing  situation,  but  contented  themselves 
with  saying  that  probably  the  court  could  nullify*a  state 
statute,  but  since  it  was  not  actually  called  upon  to  do 
so  it  was  easy  to  escape  from  a  position  fraught  with 
possible  difficulties. 

In  United  States  v.  Peters1  the  Supreme  Court  was 
brought  into  conflict  with  Pennsylvania  and  thought  it 
necessary  to  declare  void  the  action  of  the  state.  Chief 
Justice  Marshall  in  closing  the  opinion  in  this  case 
remarked : 

It  will  be  readily  conceived,  that  the  order  which  this  court  is 
enjoined  to  make  by  the  high  obligations  of  duty  and  law,  is 
not  made  without  extreme  regret  at  the  necessity  which  has 
induced  the  application.  But  it  is  a  solemn  duty,  and  there- 
fore, must  be  performed. 

In  this  case  the  regret  expressed  was  probably  due 
partly  to  the  fact  that  a  statute  was  overturned  and 
partly  to  the  fact  that  the  state  of  Pennsylvania  had  be- 
fore this  decision  taken  means  to  enforce  the  statute  now 
nullified,  but  at  all  events  the  Chief  Justice  seems  to  have 
stood  in  some  awe  of  the  power  of  a  "sovereign  state'' 

1  5  Cranch,  115. 


56  UNCONSTITUTIONAL  LEGISLATION  [^Q 

and  have  feared  somewhat  the  shock  of  conflict  with  such  a 
state.  This,  too,  was  about  six  years  after  the  court  had 
escaped  uninjured  when  it  exercised  a  somewhat  similar 
control  over  the  legislature  of  the  nation  which  it  was 
now  exercising  over  that  of  a  state. 

The  Supreme  Court  next  checked   the  activities  of  a 
\   state    legislature    in   Fletcher  v.    Peck.1      Chief    Justice 
Marshall,  who  delivered  the  opinion  of  the  court,  in  ap- 
proaching   the    question    of    constitutional    repugnance 
stated, 

The  question,  whether  a  law  be  void  for  its  repugnancy  to  the 
constitution  is,  at  all  times,  a  question  of  much  delicacy, 
which  ought  seldom,  if  ever,  to  be  decided  in  the  affirmative, 
in  a  doubtful  case.  The  court,  when  impelled  by  duty  to 
render  such  a  judgment,  would  be  unworthy  of  its  station, 
could  it  be  unmindful  of  the  solemn  obligations  which  that 
station  imposes.  But  it  is  not  on  slight  implication  and 
vague  conjecture,  that  the  legislature  is  to  be  pronounced  to 
have  transcended  its  powers,  and  its  acts  to  be  considered  as 
void.  The  opposition  between  the  Constitution  and  the  law 
should  be  such  that  the  judge  feels  a  clear  and  strong  convic- 
tion of  their  incompatibility  with  each  other.2 

It  is  somewhat  remarkable  to  find  the  Chief  Justice 
thus  declaring  so  great  a  respect  for  the  state  legislatures 
and  his  great  reluctance  to  vitiate  any  of  their  acts  when 
the  same  Chief  Justice  had  manifested  no  such  reluctance 
or  hesitancy  when  he  nullified  an  act  of  the  national  leg- 
islature. Apparently  Marshall  had  more  respect  for  a 

1  6  Cranch,  87. 

2  Justice  Johnson  in  an  opinion  partly  concurring  and  partly  dissent- 
ing says:  "I  do  not  hesitate  to  declare,  that  a  state  does  not  possess  the 
power  of  revoking  its  own  grants.     But  I  do  it,  on  a  general  principle, 
on  the  reason  and  nature  of  things;  a  principle  which  will  impose  laws 
even  on  the  Deity." 


ISO 


ATTITUDE  OF  THE  SUPREME  COURT 


-7 


tate  than  he  had  for  a  co-ordinate  branch  of  the  gov- 
:rnment  of  which  the  court,  over  which  he  presided,  was 
in  integral  part. 

The  validity  of  a  state  statute  because  of  a  conflict  with 
he  national  constitution  was  next  questioned  in  New 
ersey  v.  Wilson.1  Chief  Justice  Marshall  again  gave 
udgment  and  in  no  way  defined  the  position  of  the  court 
m  the  question  of  annulling  statutes,  nor  is  there  any 
ndication  of  reluctance  or  regret.  The  learned  justice 
imply  stated  that  the  statute, 

n  the  opinion  of  this  court,  is  repugnant  to  the  constitution 
f  the  United  States,  inasmuch  as  it  impairs  the  obligation  of 
contract,  and  is,  on  that  account,  void. 

The  Supreme  -Court  next  had  occasion  to  nullify  a 
tate  enactment  in  the  case  of  Terret  v.  Taylor.2  Justice 
tory  in  delivering  the  opinion  of  the  court  said, 

lat  the  legislature  can  repeal  statutes  creating  private  cor- 
orations,  or  confirming  to  them  property  already  acquired 
nder  the  faith  of  previous  laws,  and  by  such  repeal,  can  vest 
le  property  of  such  corporations  exclusively  in  the  state,  or 
ispose  of  the  same  to  such  purposes  as  they  may  please, 
athout  the  consent  or  default  of  the  corporators,  we  are  not 
repared  to  admit  ;  and  we  think  ourselves  standing  upon  the 
rinciples  of  natural  justice,  upon  the  fundamental  laws  of 
very  free  government,  upon  the  spirit  and  the  letter  of  the 
institution  of  the  United  States,  and  upon  the  decisions  of 
ic  most  respectable  judicial  tribunals,  in  resisting  such  a 
octrine. 

n  this  case  the  learned  justice  was  not  content  appar- 
ntly  to  rest  his  decision  ''upon  the  spirit  and  the  letter 
f  the  constitution  of  the  United  States,"  but  also  needed 


7  Cranch,  164. 


g  Cranch,  43. 


58  UNCONSTITUTIONAL  LEGISLATION  [152! 

the  additional  legal  and  moral  support  of  the  "  principles 
of  natural  justice  and  the  fundamental  laws  of  every  free- 
government." 

The  next  case  in  which  the  court  was  called  upon  to 
decide  an  alleged  conflict  between  a  state  statute  and  thel 
United  States  constitution  was  in  Sturgis  v.  Crowninl 
shield.1  Chief  Justice  Marshall  spent  no  time  in  elabor-j 
ating  upon  the  delicacy  of  the  situation,  nor  had  he  any-] 
thing  to  say  regarding  the  deference  due  a  sovereign] 
state,  but  simply  asserted  in  a  certificate  to  the  lower 
court  from  which  the  case  had  come : 

This  court  is  further  of  opinion,  that  the  act  of  New  York] 
...  is  a  law  impairing1  the  obligation  of  contracts  within  the] 
meaning  of  the  constitution  of  the  United  States.  .  .  . 

In  the  same  term  of  court  another  constitutional  ques-J 
tion  appeared  in  the  very  important  case  of  McCulloch 
v.  Maryland,2  and  Chief  Justice  Marshall  again  delivered 
the  unanimous  opinion  of  the  court,  but  the  Chief  Justice 
was  by  no  means  insensible  of  the  importance  of  the  de- 
cision as  indicated  by  the  following  language  : 

In  the  case  now  to  be  determined,  the  defendant,  a  sovereign 

1  state,  denies  the  obligation  of  a  law  enacted  by  the  legislature 
of  the  Union,  and  the  plaintiff,  on  his  part,  contests  the 
validity  of  an  act  which  has  been  passed  by  the  legislature  oi 
that  state.  The  constitution  of  our  country,  in  its  most  in- 
teresting and  vital  parts,  is  to  be  considered  ;  the  conflicting 
powers  of  the  government  of  the  Union  and  of  its  members, 
as  marked  in  that  constitution  are  to  be  discussed  ;  and  an 
opinion  given,  which  may  essentially  influence  the  great  oper-j 
ations  of  the  government.  No  tribunal  can  approach  such  a 
question  without  a  deep  sense  of  its  importance,  and  of  thcj 

]4  Wheat.,  122.  24  Wheat.,  316. 


I53l  ATTITUDE  OF  THE  SUPREME  COURT  59 

awful  responsibility  involved  in  its  decision.  But  it  must  be 
decided  peacefully,  or  remain  a  source  of  hostile  legislation, 
perhaps,  of  hostility  of  a  still  more  serious  nature  ;  arid  if  it  is 
to  be  so  decided,  by  this  tribunal  alone  can  the  decision  be 
made.  On  the  Supreme  Court  of  the  United  States  has  the 
Constitution  of  our  country  devolved  this  important  duty. 

After  the  Chief  Justice  thus  fully  states  that  he  recog- 
nizes the  seriousness  of  the  action  of  the  court  and  ex- 
plains that  the  states  have  no  power  to  burden  the  legiti- 
mate activities  of  the  national  government,  he  closes  the 
opinion  with  : 

This  is,  we  think,  the  unavoidable  consequence  of  that 
supremacy  which  the  constitution  has  declared.  We  are 
unanimously  of  opinion,  that  the  law  passed  by  the  legisla- 
ture of  Maryland  ...  is  unconstitutional  and  void. 

The  term  of  court  of  1819  was  an  important  one  so 
far  as  constitutional  questions  were  concerned,  for 
scarcely  had  the  court  passed  upon  McCulloch  v. 
Maryland  when  the  equally  famous  case  of  Dartmouth 
College  v.  Woodward,1  was  decided.  Chief  Justice  Mar- 
shall again  delivered  the  opinion  of  the  court,  and  that 
he  was  duly  impressed  by  the  importance  of  the  court's 
action  is  attested  by  the  following  language : 

This  court  can  be  insensible  neither  to  the  magnitude  nor  the 
delicacy  of  this  question.  The  validity  of  a  legislative  act  is 
to  be  examined  ;  and  the  opinion  of  the  highest  law  tribunal 
of  a  state  is  to  be  revised — an  opinion  which  carries  with  it 
intrinsic  evidence  of  the  diligence,  of  the  ability,  and  the  in- 
tegrity, with  which  it  was  formed.  On  more  than  one  occa- 
sion, this  court  has  expressed  the  cautious  circumspection 
with  which  it  approaches  such  questions;  and  has  declared, 

'4  Wheat.,  518. 


60  UNCONSTITUTIONAL  LEGISLATION  [T^4 

that  in  no  doubtful  case,  would  it  pronounce  a  legislative  act 
contrary   to   the   constitution.  ...     In  the  same    instrument 
[the  constitution]   they   have  also   said,   "  that  the  judicial 
power  shall  extend  to  all  cases  in  law  and  equity  arising  under 
the  constitution.''     On  the  judges  of  this  court,  then,  is  im- 
posed  the  high  and  solemn  duty   of  protecting,   from   even 
legislative  violation,  those  contracts  which  the  constitution  I 
of  our  country  has  placed  beyond  legislative  control ;  and,  I 
however  irksome  the  task  may  be,  this  is  a  duty  from  which  I 
we  dare  not  shrink. 

And  the  decision  closes  : 

It  results  from  this  opinion  that  the  acts  of  the  legislature  of 
New  Hampshire,  ....  are  repugnant  to  the  constitution  of  I 
the  United  States."  ' 

In  Green   v.    Biddle2  the  Supreme    Court  had  to  act  j 

1  Justice  Story,  in  a  separate  concurring  opinion  in  this  case,  after 
stating  that  he  believes  the  act  under  examination  is  unconstitutional 
and  void  continues:  "  In  pronouncing  this  judgment,  it  has  not  for  one 
moment  escaped  me.  how  delicate,  difficult  and  ungracious  is  the  task 
devolved  upon  us.  The  predicament  in  which  this  court  stands  in  re- 
lation to  the  nation  at  large,  is  full  of  complexities  and  embarrassments. 
It  is  called  to  decide  on  causes  between  citizens  of  different  states,  be- 
tween a  state  and  its  citizens,  and  between  different  states.  It  stands, 
therefore,  in  the  midst  of  jealousies  and  rivalries  of  conflicting  parties, 
with  the  most  momentous  interests  confided  to  its  care.  Under  such 
circumstances,  it  never  can  have  a  motive  to  GO  more  than  its  duty; 
and  I  trust  it  will  always  be  found  to  possess  firmness  to  do  that. 

"  Under  these  impressions,  I  have  pondered  on  the  case  before  us 
with  the  most  anxious  deliberation.  I  entertain  great  respect  for  the 
legislature  [that  of  New  Hampshire],  whose  acts  are  in  question.  I 
entertain  no  less  respect  for  the  enlightened  tribunal  whose  decisions 
we  are  called  upon  to  review.  In  the  examination,  I  have  endeavored 
to  keep  my  steps  super  antiguas  vias  of  the  law,  under  the  guidance  of 
authority  and  principle.  It  is  not  for  judges  to  listen  to  the  voice  of 
persuasive  eloquence,  or  popular  appeal.  We  have  nothing  to  do,  but 
to  pronounce  the  law  as  we  find  it;  and  having  done  this,  our  justifica- 
tion must  be  left  to  the  impartial  judgment  of  our  country." 

*  8  Wheaton,  i. 


155] 


ATTITUDE  OF  THE  SUPREME  COURT 


61 


igain    as    an    arbiter    between    the   constitution    of    the 
United  States  and  the  enactment  of  a  state  legislature. 
[Justice    Washington,  in    delivering   the   opinion   in    the 
second   hearing  of   the  case,  defined  the  court's  attitude 
:owards  this  question  as  follows  : 

[aving  thus  endeavored  to  clear  the  question  of  these  pre- 
liminary objections,  we  have  only  to  add,  by  way  of  conclu- 
;ion,  that  the  duty,  not  less  than  the  power  of  this  court,  as 
veil  as  of  every  court  in  the  Union,  to  declare  a  law  uncon- 
stitutional, which  impairs  the  obligation  of  constracts,  who- 
ever may  be  the  parties  to  them,  is  too  clearly  enjoyed  [en- 

|joined]  by  the  constitution  itself,  and  too  firmly  established 
>y  the  decisions  of  this  and  other  courts,  to  be  now  shaken  ; 

land  that  these  decisions  entirely  cover  the  present  case. 

After  this  assertion  that  the  power  of  the  court  to  annul 
a  statute  was  now  a  fact  established  quite  beyond  ques- 
tion, the  Justice  indulges  in  a  brief  review  of  other  cases 
along  similar  lines  and  closes  his  opinion  : 

|As  to  the  other  branches  of  the  government  of  that  state, 
[Kentucky]  we  need  only  observe,  that  while  the  legislature 
Ihas  maintained  the  opinion,  most  honestly,  we  believe,  that 
the  acts  of  1797  and  1812  were  consistent  with  the  compact, 
the  objections  of  the  governor  to  the  validity  of  the  latter  act, 
and  the  reasons  assigned  by  him  in  their  support,  taken  in 
connection  with  the  above  case,  incline  us  strongly  to  suspect, 
that  a  great  diversity  of  opinion  prevails  in  that  state,  upon 
the  question  we  have  been  examining.  However  this  may 
be,  we  hold  ourselves  answerable  to  God,  our  consciences, 
and  our  country,  to  decide  this  question  according  to  the 
dictates  of  our  best  judgment,  be  the  consequences  of  the 
decisions  what  they  may.  If  we  have  ventured  to  entertain 
a  wish  as  to  the  result  of  the  investigation  which  we  have 
laboriously  given  to  the  case,  it  was,  that  it  might  be  favor- 
able to  the  validity  of  the  laws;  our  feelings  being"  always  on 


62  UNCONSTITUTIONAL  LEGISLATION 

that  side  of  the  question,  unless  the  objections  to  them  are 
fairly  and  clearly  made  out. 

The  court,  as  indicated  by  the  above,  had  no  doubts  at 
all  about  its  power  to  nullify  a  statute,  but  was  appa- 
rently very  reluctant  to  use  that  power. 

Following  the  decision  of  Green  v.  Biddle,  several  other 
cases  in  which  the  court  had  to  pass  on  the  constitu- 
tional validity  of  state  statutes  were  presented  to  it,  some 
of  the  cases  involving  important  questions.1  Although 
the  court  indulged  in  some  explanatory  remarks  tending 
to  justify  itself  and  soothe  the  ruffled  feelings  of  the 
states,  it  had  apparently  no  great  hesitation  in  nullifying 
the  statutes;  but  in  Ogden  v.  Saunders,2  decided  about 
four  years  after  Green  v.  Biddle,  certain  members  of  the 
court  in  delivering  their  opinions  seriatim  again  ex- 
pressed their  feelings  of  responsibility,  as  indicated  by 
by  Justice  Washington's  language  : 

I  shall  now  conclude  this  opinion,  by  repeating"  the  acknowl- 

Iment  which  candor  compelled  me  to  make  at  its  commence- 
ment, that  the  question  which  I  have  been  examining  is 
involved  in  difficulty  and  doubt.  But  if  I  could  rest  my 
opinion  in  favor  of  the  constitutionality  of  the  law  on  which 
the  question  arises,  on  no  other  ground  than  this  doubt  so  felt 
and  acknowledged,  that  alone,  would,  in  my  estimation,  be  a 
satisfactory  vindication  of  it.  It  is  but  a  decent  respect  due 

1  These  cases  were  Society  v.  New  Haven,  8  Wheaton,  464;  Gibbons 
v.  Ogden,  9  Wheaton,  i;  Osborn  v.  Bank,  9  Wheaton,  738.  (See  Ap- 
pendix II).  Gibbons  v.  Ogden  defined  the  relative  powers  of  the  United 
States  and  the  states  over  interstate  commerce  and  was  consequently  of 
great  importance.  In  the  inexorableness  and  certainty  of  its  tone  this 
case  resembles  Marbury  v.  Madison.  Osbdrn  v.  The  Bank  excited 
considerable  popular  interest,  but  the  general  constitutional  question 
affecting  the  validity  of  the  state  statute  had  already  been  decided  in. 
McCulloch  v.  Maryland,  supra,  p.  58. 

*  12  Wheaton,  213. 


57]  ATTITUDE  OF  THE  SUPREME  COURT  63 

the  wisdom,  the  integrity,  and  to  the  patriotism  of  the  leg- 
lative  body,  by  which  any  law  is  passed,  to  presume  in  favor 

its  validity,  until  its  violation  of  the  constitution  is  proved 
jyond  all  reasonable  doubt.  This  has  always  been  the  lan- 
.iage  of  this  court,  when  that  subject  has  called  for  its  deci- 
on;  and  I  know  that  it  expresses  the  honest  sentiments  of 
ich  and  every  member  of  this  bench. 

jdging  from  this  language  as  late  as   1827,  when  this 

ise  was  decided,  at  least  certain  members  of  the  court 
ill  had  great  respect  for  a  state  legislature,  and  partic- 
arly  avowed  that  no  state  act  would  be  nullified  except 
case  of  the  clearest  necessity. 

In  Brown  v.  Maryland,1  when  the  constitutionality  of 
state  statute  was  again  questioned  before  the  Supreme 

ourt,  Chief  Justice  Marshall,  in  giving  the  opinion  of 
majority  of  the  Justices,  thus  briefly  alludes  to  the 

ourt's  attitude  on  this  point: 

has  been  truly  said,  that  the  presumption  is  in  favor  of 
rery  legislative  act,  and  that  the  burden  of  proof  lies  on  him 
ho  denies  its  constitutionality. 

he  opinion  then  closes : 

\le  think  there  is  error  in  the  judgment  of  the  Court  of  Appeals 
the  State  of  Maryland  .  .  .  because  the  act  of  the  legislature 
Maryland  ...  is  repugnant  to  the  Constitution  of  the  United 

:ates  and  consequently  void. 

hese  short  remarks  are  all  that  the  Chief  Justice  saw 
t  to  insert  in  the  opinion  on  this  question. 

In  another  case,  Weston  v.  Charleston,2  in  which  the 
ourt  found  it  necessary  to  nullify  a  municipal  ordinance 

;cause  of  conflict  with  the  national   constitution,  Mar- 

'12  Wheat,  419.  22  Peters,  449. 


64  UNCONSTITUTIONAL  LEGISLATION  [I5gl 

shall  again  delivered  the  opinion  of  the  court  and  while! 
the  Chief  Justice  seems  reluctant  to  annul  the  ordinance] 
this  regret  was  apparently  not  due  so  much  to  the  fact 
that  the  court  was  thwarting  the  will  of  a  local  legisla- 
ture as  it  was  to  the  fact  that  the  decision  necessarily 
limited  the  taxing  power  of  a  state.  Again  about  a  yeat 
later  in  the  case  of  Craig  v.  Missouri '  where  the  court 
thought  itself  bound  to  limit  the  financial  activity  of  the 
state  of  Missouri  because  of  constitutional  objections, 
the  Chief  Justice,  delivering  the  opinion  of  the  court, 
explains  its  position  very  definitely  by  the  following : 

In  the  argument,  we  have  been  reminded  by  one  side,  of  the 
dignity  of  a  sovereign  state,  of  the  humiliation  of  her  submit- 
ting- herself  to  this  tribunal,  of  the  dangers  which  may  result 
from  inflicting  a  wound  on  that  dignity  ;  by  the  other,  of  the 
still  superior  dignity  of  the  people  of  the  United  States,  who 
have  spoken  their  will,  in  terms  which  we  cannot  misunder- 
stand.    To  these  admonitions,  we  can  only  answer,  that  if 
the  exercise  of  that  jurisdiction  which  has  been  imposed  upon 
us  by  the  constitution  and  laws  of  the  United  States,  shall  be 
calculated  to  bring  on  those  dangers  which  have  been  indi- 
cated ;  or  if  it  shall  be  indispensable  to  the  preservation  of 
the  Union,  and  consequently,  of  the  independence  and  liberty  I 
of  these  states  ;  these  are  considerations  which  address  them- 
selves to  those  departments  which  may  with  perfect  propriety] 
be  influenced  by  them.     This  department  can  only  listen  to  I 
the  mandates  of  the  law  ;  and  can  tread  only  that  path  which  I 
is  marked  out  by  duty. 

Thus  the  court,  after  it  had  asserted  and  exercised  its  I 
power  to  nullify  a  state  statute  for  more  than  twenty  I 
years,  apparently  did  not  yet  find  itself  in  such  a  secure] 
position,  or  so  free  from  censure  as  to  be  relieved  of  the  I 


4  Peters,  410. 


ATTITUDE  OF  THE  SUPREME  COURT  65 

iccessity  of  explaining  and  justifying  its  position  before 
he  public. 

In  another  case,  Worcester  v.  Georgia,1  regarding  a 
uestion  deeply  involved  in  politics  and  one  which  was 
3ound  to  bring  down  much  censure  on  the  court  should 
he  decision  be  adverse  to  the  state,  Chief  Justice  Mar- 
hall  was  quite  unterrified,  simply  explaining  that  the 
ourt  could  in  no  way  escape  making  a  decision  in  cases 
>roperly  brought  before  it,  as  this  was,  and  that  it  would 
ecide  according  to  its  best  judgment.  But  some  of  the 
>ther  justices  were  not  so  sure  of  their  position  ;  for 
ustice  McLean  takes  considerable  pains  to  show  that 
he  constitution  of  the  United  States  is  the  supreme 
aw  of  the  land,  and  consequently  that  no  act  of  the  legis- 
ature  of  any  state  or  of  Congress,  which  is  repugnant 
o  it,  can  be  of  any  validity.  Also  the  justice  seems  to 
hink  that  the  public  has  more  confidence  in  the  state 
han  in  the  federal  judiciary,  for  he  shows  that  the  state 
ourts  can  and  do  nullify  statutes  of  their  respective 
tates.  Assuming  that  this  power  is  beyond  question  in 
he  state  courts,  the  justice  then  by  analogy  shows  that 
he  federal  supreme  court  must  have  the  same  power  if 
state  act  conflicts  with  the  federal  constitution.  It  is 
vident,  however,  that  as  late  as  1832,  the  date  of  this 
ase,  the  court  exercised  its  power  of  nullifying  state 
tatutes  with  considerable  hesitancy  and  trepidation. 

Although  the  court  undoubtedly  had  genuine  hesita- 
ion  in  taking  the  action  it  did  in  Worcester  v.  Georgia, 
his  case  practically  closes  the  period  when  it  exhibits 
my  great  respect  for  a  state  legislature,  at  least  so  far  as 
he  language  in  the  opinions  indicates.  In  nearly  every 
case  up  to  the  time  that  Worcester  v.  Georgia  was  de- 

'6  Peters,  515. 


66  UNCONSTITUTIONAL  LEGISLATION  [^o 

cided,  the  court,  or  at  least  some  concurring  member  of 
it,  has  given  expression  to  its  recognition  of  the  import- 
ance and  solemnity  of  the  proceedings,  the  deference  due 
to  a  "  sovereign  state,"  and  of  the  court's  regret  in  being 
compelled  to  annul  the  act  of  such  a  state.  But  after 
about  1832  a  change  appears.  In  the  fifteen  years  fol- 
lowing, a  considerable  number  of  cases  involving  the 
constitutionality  of  state  statutes  appeared  in  the  highest 
law  tribunal  of  the  land,  and  the  court  felt  called  upon, 
in  various  instances,  to  annul  the  statute  in  question.1 
Some  of  the  questions  involved  were  not  particularly 
important,  and  most  of  the  opinions  during  these  years 
are  short.  But  there  were  also  some  really  important 
questions  argued  before  the  court — questions  which  had 
wide-reaching  influence  on  the  activities  of  the  states — 
and  yet  the  court  declared  these  statutes  unconstitutional 
without  any  apparent  hesitancy  and  with  few  expressions 
of  regret  because  they  were  forced  to  take  such  action. 
During  this  period  the  dignity  of  the  state,  the  deference 
due  to  that  government,  the  presumption  of  constitution- 
ality and  the  warning  that  "  there  is  no  portion  of  the 
power  and  jurisdiction  committed  to  this  court  which 
demands  so  much  caution  in  its  exercise,  as  that  of  de- 
claring the  legislation  of  a  state  to  be  null  and  void,  be- 
cause it  comes  in  conflict  with  the  Constitution  of  the 
United  States,"  2  all  found  refuge  in  that  haven  of  possi- 
bilities but  not  actualities — dissenting  opinions. 

During  the  years  immediately  preceding  and  follow- 
ing the  Civil  War  the  court  in  approaching  a  question  cf 
a  constitutional  nature  assumed  an  attitude  of  indiffer- 
ence. Its  opinions  in  constitutional  cases  are  short 

1  See  Appendix  II  for  list  of  these  cases. 

2  Dissenting  opinion,  Woodruff  v.  Trapnell,  10  Howard,  209. 


!6i]  ATTITUDE  OF  THE  SUPREME  COURT  67 

usually,  and  but  little  or  no  space  is  wasted  in  softening 
its  decisions,  the  court  simply  making  some  blunt  state- 
ment that  the  statute  is  invalid. 

In  the  case  of  Inman  Steamship  Co.  v.  Tinker,1  the 
court  in  a  short  five-page  decision  makes  the  brief 
statement : 

The  State,  in  passing  this  law  imposing-  a  tonnage  duty,  has 
exercised  a  power  expressly  prohibited  to  it  by  the  Constitu- 
tion. In  that  particular  the  law  is,  therefore,  void. 

Again  in  Foster  v.  New  Orleans,2  in  an  opinion  covering- 
less  than  three  pages,  in  describing  certain  duties  levied 
by  the  legislature  of  Louisiana,  at  the  port  of  New 
Orleans,  the  court  states  : 

They  [the  provisions  of  the  statute]  are  a  clog  and  a  blow  to 
all  such  commerce  in  the  port  to  which  they  relate.  Their 
enactment  involved  a  power  which  belongs  exclusively  to 
Congress,  and  which  a  state  could  not,  therefore,  properly 
exercise.  .  .  .  We  hold  the  statute  to  be  void. 

In  Guy  v.  Baltimore,3  in  which  both  the  statute  of  the 
state  of  Maryland  and  an  ordinance  of  the  city  of  Balti- 
more were  questioned,  the  court  used  no  space  in  stat- 
ing its  respect  for  the  legislative  will  of  a  state  or  city, 
but  disposes  of  the  matter  with  this  short  and  definite 
statement : 

Nothing  can  be  clearer  than  that  the  statute  of  the  state  of 
Maryland  and  the  ordinance  of  the  city  of  Baltimore,  in  the 
respects  adverted  to,  are  in  conflict  with  the  power  of  Con- 
gress over  the  subject  of  commerce. 

For  constitutional  cases  the  record  for  brevity  and  con- 
'94  U.  S.,  238.  '94  U.  S.,  246.  3ioo  U.  S.,  434. 


68  UNCONSTITUTIONAL  LEGISLATION 

ciseness,  so  far  as  the  Supreme  Court  is  concerned,  is 
probably  held  by  the  case  of  the  Adams  Express  Com- 
pany v.  Kentucky.1  In  a  decision  covering  two  pages  a 
statute  of  the  state  is  partially  annulled,  the  court  indi- 
cating its  attitude  towards  the  constitutional  question 
by  the'  following  language:2  "Clearly  within  the  cases 
above  cited  the  statute  before  us  as  applied  to  transpor- 
tation from  State  to  State  cannot  be  sustained." 

In  the  cases  previously  mentioned,  while  the  court's 
opinions  were  quite  short  and  curt  and  but  scant  respect 
was  shown  to  the  states,  and  the  court  did  not  see  fit  to 
express  any  regrets  that  they  were  compelled  by  their 
sense  of  duty  to  annul   statutes,  yet  there  is  no   doubt 
that  in  each  case  a  statute  is  annulled,  the  court  distinctly 
stating  so.     Also  the  court  indicated  the  clause  of  the 
constitution  with  which  the  statute  conflicted,  or  if  there 
was  no  specific  clause  it  took  pains  to  show  why  the 
statute  was    contrary  to  the  spirit  of   the  constitution. 
There  is,  however,  another  class  of  cases  in  which,  whi 
the  judgment  was  distinctly  contrary  to  the  statute 
question,    the    court    did     not    apparently    think    it 
sufficient  importance   to    mention  the  fact   that   a    stat 
statute  was  being  annulled.     In  Hawthorne  v.  Calef 3  tli 
court  makes  no  mention  of  the  fact  that  a  statute  is  bein 
declared  void.     Seemingly  the  court  is  entirely  occupie 
with  its  reasoning,  and  the  nullification  of  a  state  statut 
is  an  incidental  or  a  by-product  which  is  not  mentionec 

In  Hall  v.  Wisconsin4  the  court  again  nullifies  the  wi 

'2141;.  S.,  218. 

2  Several  of  these  short,  concise  opinions  in  constitutional  cases  hav 
appeared  very  recently.  See  Dozier  v.  Alabama,  218  U.  S.,  124;  Rai 
road  Co.  v.  O'Connor,  223  U.  S.,  280;  Oklahoma  v.  Wells,  Fargo  &  Co 
223  U.  S.,  298. 

32  Wall.,  10.  *I03  U.  S.,  5. 


531 


ATTITUDE  OF  THE  SUPREME  COURT 


69 


of  a  state  legislature,  though  not  doing  so  in  express 
terms.  There  is  a  considerable  number  of  cases  l  where 
the  court  did  not  take  the  trouble  to  mention  the  fact 
that  a  statute  was  being  vitiated,  or  did  so  only  incident- 
ally, leaving  its  judgments  to  work  out  the  inevitable 
nullifying  effect.2 

It  certainly  is  indicative  of  the  great  growth  of  judicial 
power  in  this  country  that  the  same  tribunal  which  found 
itself  involved  in  so  much  difficulty,  pain  and  travail  in 
the  earlier  period  of  its  existence  could  later  so  non- 
chalantly nullify  state  enactments. 

In  the  above  cases  while  the  court  neglected  to  pay 
any  particular  respect  to  the  states  and  apparently  had 
no  great  reluctance  in  nullifying  state  statutes  yet  it  said 
nothing  derogatory  of  the  state  legislatures.  There  are 
cases,  however,  in  which  the  court  has  not  been  so  kindly 
in  its  attitude  towards  the  states  and  their  law-making 
bodies.  In  some  instances  it  has  scolded  them  and 
manifested  impatience  towards  them ;  in  others  it  has 
assumed  a  somewhat  patronizing  air  and  finally  in 
others  indulged  in  hostile  criticism,  in  some  cases  quite 
bitter. 

One  of  the  first  cases  in  which  this  attitude  appears  is 
Curran  v  Arkansas.3  It  was  alleged  that  the  state  of 
Arkansas  had  made  a  contract  and  then  later  attempted 

1 E.  g.  Dunphy  v.  Kleinsmith,  n  Wall.,  610  (territorial  statute); 
Delmas  v.  Merchants  Insurance  Co.,  14  Wall.,  661;  Cook  v.  Pennsyl- 
vania, 97  U.  S.,  566;  University  v.  The  People,  99  U.  S.,  309;  Nelson  v. 
Parish  of  St.  Martin,  in  U.  S.,  716. 

2  In  Neilson^.  Oregon,  212  U.  S.,  315,  the  court  does  not  attempt  any 
constitutional  discussion  of  any  sort,  but  does  partly  annul  an  act  of 
Oregon,  simply  saying  that  the  state  can  not  do  what  it  has  attempted, 
and  presumably  expects  justification  for  its  decision  from  the  peculiar 
circumstances  surrounding  the  case. 

3  15  Howard,  304  (1853). 


t/v 


70  UNCONSTITUTIONAL  LEGISLA  TION  [  1 64  j 

to  impair  the  obligation  of  that  contract.  Speaking  of 
this  the  court  says: 

The  obligation  of  such  a  contract  can  no  more  be  impaired  | 
than  if  it  \\ere  under  no  circumstances  subject  to  legislative 
control.  The  assumption  that,  because  the  legislature  may 
destroy  a  contract  by  repealing  the  charter  of  the  corporation 
which  made  it,  therefore  such  a  contract  may  be  impaired,  or 
altered,  or  destroyed,  in  any  manner  the  legislature  may 
think  fit,  without  repealing  the  charter,  is  wholly  inadmiss- 
able. 

In  Wilmington  v.  Reid '  the  court  manifests  its  impa- 
tience regarding  the  state  of  North  Carolina  because  it  <• 
has  again  to  express  itself  on  a  principle  which  it  has  \ 
had    great    difficulty    in    forcing    the  states    to    accept,  . 
namely,    that  a   public  corporation  can  make  an  agree- 
ment which  the  same  organ  of  the  corporation  may  not 
later  repeal,  or  in  other  words  that  a  state  or  municipal 
corporation  may  make  an  irrepealable  contract  and   be 
bound   by  the   rules   of   private   law.     In   this  case   the 
court  opens  its  argument  with: 

It  has  been  so  often  decided  by  this  court  that  a  charter  of 
incorporation  granted  by  a  State  creates  a  contract  between 
the  State  and  the  corporators,  which  the  State  cannot  violate, 
that  it  would  be  a  work  of  supererogation  to  repeat  the 
reasons  on  which  the  argument  is  founded.  ...  If,  however, 
the  contract  is  plain  and  unambiguous,  and  the  meaning  of  the 
parties  to  it  can  be  clearly  ascertained,  it  is  the  duty  of  the 
court  to  give  effect  to  it,  the  same  as  if  it  were  a  contract 
between  private  persons,  without  regard  to  its  supposed  in- 
jurious effects  upon  the  public  interest.* 

1 13  Wall.,  264. 

2  In  this  case  the  court  continued  the  argument  as  follows:  "  It  may 
be  conceded  that  it  were  better  for  the  interest  of  the  State,  that  the  1 


ATTITUDE  GF  THE  SUPREME  COURT 


71 


In  Gunn  v.  Barry,1  a  Georgia  statute  is  annulled  and    / 
the  court  accuses  the  legislature  of  committing  a  serious 
offense  in  passing  such  a  statute  for  it  says  in  part  : 

The  effect  of  the  act  in  question,  under  the  circumstances  of 
this  judgment,  does  not  indeed  merely  impair,  it  annihilates 
the  remedy.  There  is  none  left. 

But  the  act  reaches  still  further.  ...  It  is  in  effect  taking 
one  person's  property  and  giving  it  to  another  without  com-  \ 
pensation.     This  is  contrary  to  reason  and  justice  and  to  the    ; 
fundamental  principles  of  the  social  compact.     But  we  must 
confine  ourselves  to  the  constitutional  aspect  of  the  case. 

Certainly  the  court  shows  no  great  respect  for  a  state 
legislature  when  it  accuses  that  body  of  deliberately 
purloining  property. 

In  the  case   of  State  Tax  on   Foreign    Held  Bonds,2  • 
the  court  makes  a  similar  attack  on  the   legislature   of 
another  state  and  in  this  latter  instance  an  attack  not  on 
one  of  the  discredited    Southern    states    either,    but  on 
Pennsylvania. 

taxing  power,  which  is  one  of  the  highest  and  most  important  attributes 
of  sovereignty,  should  on  no  occasion  be  surrendered.  .  .  .  But  the 
courts  of  the  country  are  not  the  proper  tribunals  to  apply  the  corrective 
to  improvident  legislation  of  this  character.  If  there  be  no  constitu- 
tional restraint  on  the  action  of  the  Legislature  on  this  subject,  there  is 
no  remedy,  except  through  the  influence  of  a  wise  public  sentiment, 
reaching  and  controlling  the  conduct  of  the  law-making  power."  The 
Supreme  Court  seems  quite  to  forget  it  was  that  body  itself,  and  not  the 
legislatures,  that  made  these  so-called  contracts  irrepealable  and  invio- 
lable, and  that  "  a  wise  public  sentiment "  can  in  no  way  affect  a  grant 
or  contract  once  made  irrepealable  or  perpetual  by  the  judiciary.  Here 
the  court  throws  the  whole  burden  of  responsibility  on  the  legislature 
and  says  nothing  about  its  share  in  bringing  about  the  undesirable  con- 
ditions presented  by  this  case. 

*i5  Wall.,  610. 

2  15  Wall.,  300. 


j2  UNCONSTITUTIONAL  LEGISLATION  [166 

.  In  Louisiana  v.  Pilsbury1  the  court  pays  its  respects 
,to  the  legislature  of  Louisiana  in  these  words  : 

We  shall  not  waste  words  upon  the  scheme  thus  developed  to 
evade  the  just  obligation  of  the  city.  Notwithstanding  the 
declaration  in  the  preamble,  that  the  act  seeks  from  the 
creditors  the  indulgence  necessary  "  for  the  public  well-being 
and  the  maintenance  of  the  public  honor,"  it  is,  so  far  as  the 
consolidated  bonds  are  concerned,  tainted  with  the  leprosy  of 
repudiation.  .  .  .  The  primal  duty  of  the  city  authorities  to 
fulfill  punctually  their  obligations  and  maintain  good  faith  is 
thus  proclaimed  to  be  no  duty  at  all. 

In  the  Virginia  Coupon  Cases2  the  court  becomes 
quite  patronizing,3  and  in  Loan  Association  v.  Topeka,4 
though  the  court  could  find  no  specific  clause  of  the 
constitution  which  was  violated,  still  it  was  quite  sure 
that  the  Kansas  statute  was  void,  and  expresses  its 
opinion  of  the  action  of  the  legislature  of  that  state  as 
follows  : 

..To  lay  with  one  hand  the  power  of  the  government  on  the 
property  of  a  citizen,  and  with  the  other  to  bestow  it  upon 
favored  individuals  to  aid  private  enterprises  and  build  up 

'105  U.  S.,  278.  2ii4U.  S.,  269. 

3  In  Collins  v.  New  Hampshire,  171  U.  S.,  30,  the  court  becomes 
facetious.  New  Hampshire  had  provided  that  all  oleomargarine  in 
order  to  be  sold  legally  in  the  state  must  be  colored  pink.  The  court 
in  expressing  its  opinion  on  this  part  of  the  statute  says:  "  If  this  pro- 
vision for  coloring  the  article  were  a  legal  condition,  a  legislature  could 
not  be  limited  to  pink  in  its  choice  of  colors.  The  legislative  fancy  or 
taste  would  be  boundless.  It  might  equally  as  well  provide  that  it 
should  be  colored  blue  or  red  or  black."  Is  it  possible  to  imagine  the 
court  of  Marshall,  Washington,  Mclean  or  Iredell,  when  confronted 
with  a  question  involving  the  constitutionality  of  a  state  statute,  dis- 
cussing the  state  legislators'  artistic  sense  as  to  whether  an  article  of 
ccmmerce  should  be  dyed  blue  or  red  or  black? 

4 20  Wall.,  655. 


1 67] 


ATTITUDE  OF  THE  SUPREME  COURT 


73 


private  fortunes,  is  none  the  less  robbery  becar.se  it  is  done 
tinder  the  forms  of  law  and  is  called  taxation.  This  is  not 
legislation.  It  is  a  decree  under  legislative  forms.1 

The  court  in  this  instance,  in  plain  language,  accuses  the 
legislature  of  a  felonious  act,  and  it  is  difficult  to  har- 
monize such  sentiments  with  the  great  respect  which  the 

1  In  Houston  and  Central  Railroad  Co.  v.  Texas,  177  U.  S.,  66,  the 
court  by  a  tortuous  course  of  reasoning  claimed  jurisdiction  and  gave  a 
curious  twist  to  its  old  doctrine  of  respect  for  the  legislature.  The  facts 
of  the  case  are  somewhat  complicated,  but  briefly  the  railroads  of  Texas 
found  themselves  in  financial  distress  during  the  Civil  War  and  the 
state  in  rendering  aid  allowed  them  to  pay  off  certain  claims  due  the 
state  by  evidence  of  indebtedness  issued  by  the  state  during  the  war  and 
called  treasury  warrants.  Afterwards  the  state  refused  to  allow  the  rail- 
roads credit  for  the  amount  of  the  warrants  thus  paid  on  the  ground 
that  the  law  authorizing  the  issue  of  the  latter  was  unconstitutional  and 
void.  When  the  case  came  on  for  trial  the  court  again  became  solici- 
tous about  the  dignity  of  a  state  legislature,  not,  however,  that  it  might 
show  respect  for  the  state,  but  because  by  upholding  the  original  act  of 
the  Texas  legislature  it  might  thus  protect  the  property  rights  of  the 
railroad.  In  the  course  of  its  opinion  in  this  case  the  court  states : 

"A  deliberate  intention  on  the  part  of  a  legislative  body  to  violate 
the  organic  law  of  the  state  under  which  it  exists  and  to  which  the 
members  have  sworn  obedience,  is  not  to  be  lightly  indulged.  The  ex- 
istence of  such  intention  should  be  proved  beyond  doubt  or  cavil  from 
the  very  acts  themselves  which  are  under  discussion,  and  if  it  be  reason- 
ably possible  to  construe  them  so  as  to  render  them  valid,  a  proper  re- 
spect for  the  legislative  department  calls  for  such  construction  rather 
than  one  which  invalidates  them,  because  they  were  enacted  with  a 
direct  purpose  to  violate  the  state  constitution." 

This  language  sounds  familiar,  but  the  purpose  for  which  it  is  used  is 
widely  different  from  that  for  which  similar  words  were  employed  half 
or  three-quarters  of  a  century  earlier.  Also  it  is  to  be  noted  that  while 
the  court,  with  a  great  show  of  respect  for  the  state  legislature,  refused 
to  nullify  the  original  act,  thus  protecting  the  railroad,  it  manifested  no 
such  compunction  when  it  annulled  the  later  statute  which  as  construed 
by  the  state  authorities  took  away  from  the  railroads  the  benefits  of  the 
original  law.  The  respect  which  the  judiciary  is  supposed  to  have  for 
the  legislature  can  be  made  to  serve  a  variety  of  purposes. 


^4  UNCONSTITUTIONAL  LEGISLATION  [168 

court  in  some  of  its  earlier  opinions  professed  to  have 
for  the  state  law-making  bodies. 

In  Smyth  v.  Ames,1  the  court  seems  to  have  quite  re- 
versed its  ancient  attitude  in  approaching  this  question, 
as  witness  : 

No  one,  we  take  it,  will  contend  that  a  state  enactment  is  in 
harmony  with  that  law  [the  constitution]  simply  because  the 
legislature  of  the  State  has  declared  such  to  be  the  case;  for 
that  would  make  the  state  legislature  the  final  judge  of  the 
validity  of  its  enactment,  although  the  Constitution  of  the 
United  States  and  the  laws  made  in  pursuance  thereof  are  the 
supreme  law  of  the  land,  anything  in  the  constitution  and 
laws  of  the  state  notwithstanding.' 

'16911.  S.,.466,  527. 

2  This  opinion  continues:  "The  idea  that  any  legislature,  state  or 
Federal,  can  conclusively  determine  for  the  people  and  for  the  courts 
that  what  it  enacts  in  the  form  of  law,  or  what  it  authorizes  its  agents 
to  do,  is  consistent  with  the  fundamental  law,  is  in  opposition  to  the 
theory  of  our  institutions.  The  duty  rests  upon  all  courts,  Federal  and 
state,  when  their  jurisdiction  is  properly  invoked,  to  see  to  it  that  no 
right  secured  by  the  supreme  law  of  the  land  is  impaired  or  destroyed 
by  legislation.  This  function  and  duty  of  the  judiciary  distinguishes 
the  American  system  from  all  other  systems  of  government.  The  per- 
petuity of  our  institutions  and  the  liberty  which  is  enjoyed  under  them 
depend,  in  no  small  degree,  upon  the  power  given  to  the  judiciary  to 
declare  null  and  void  all  legislation  that  is  clearly  repugnant  to  the 
supreme  law  of  the  land." 

This  is  the  judiciary's  attitude  regarding  its  function  in  preserving 
our  institutions  and  our  liberties.  That  this  view  has  not  always  been 
acquiesced  in  by  the  legislative  branch  the  following  testifies: 

"Resolved,  That  the  judgment  aforesaid  is  in  its  tendency,  subversive 
of  all  law  and  order,  and  leads  directly  to  anarchy  and  confusion;  be- 
cause if  a  court  instituted  for  the  benefit  and  government  of  a  corpora- 
tion may  take  upon  them  to  dispense  with  an  act  in  direct  violation  of 
a  plain  and  known  law  of  the  state,  all  other  courts,  either  superior  or 
inferior  may  do  the  like:  and  therewith  will  end  all  our  dear  bought 
rights  and  privileges  and  legislatures  become  useless."  Resolution  of 
the  Lower  House  of  the  New  York  Assembly  after  the  decision  in  Rut- 
gers v.  Waddington,  Journal  of  the  New  York  Assembly,  1782  page 
32.  See  supra,  p.  18. 


i69] 


ATTITUDE  OF  THE  SUPREME  COURT 


Probably  the  best  comment  on  this  are  the  remarks  of 
the  same  court,  or  the  justices  of  the  eourt,  on  the  same 
subject: 


is  but  a  decent  respect  due  to  the  wisdom,  the  integrity, 
and  the  patriotism  of  the  legislative  body,  by  which  any  law 
is  passed,  to  presume  in  favor  of  its  validity,  until  its  viola- 
tion of  the  constitution  is  proved  beyond  all  reasonable  do 
This  has  always  been  the  language  of  this  court,  when  that 
subject  has  called  for  its  decision;  and  I  know  that  it  expresses 
the  honest  sentiments  of  each  and  every  member  of  this  bench-1 
This  court  can  be  insensible  neither  to  the  magnitude  nor 
delicacy  of  this  question.  The  validity  of  a  legislative  act  is 
to  be  examined  and  the  opinion  of  the  highest  law  tribunal  of 
a  state  is  to  be  revised  —  an  opinion  which  carries  with  it  in- 
trinsic evidence  of  the  diligence,  of  the  ability,  and  the  integ- 
rity, with  which  it  was  formed.  On  more  than  one  occasion, 
this  court  has  expressed  the  cautious  circumspection  with 
which  it  approaches  the  consideration  of  such  questions;  and 
has  declared,  that  in  no  doubtful  case,  would  it  pronounce  a 
legislative  act  to  be  contrary  to  the  constitution.2 
It  is  apparent  that  whatever  awe  the  Supreme  Court  of 
the  United  States  ever  had  of  the  states  has  now  quite 
completely  disappeared.  It  no  longer  shows  any  per- 

"  The  declaration  by  the  people  of  Kentucky,  that  they  will  be  free, 
would  be  superfluous;  they  cannot,  until  their  habits  and  nature  are 
changed,  be  otherwise;  and  they  have  no  preference  lor  judicial  tyranny. 
They  will  not  tolerate  tyranny  under  any  disguise;  but  while  they  abhor 
oppression  under  whatever  mask,  they  love  order,  and  will  not  violate 
it  until  no  other  alternative  is  left.  Wherefore: 

Resolved  by  the  Legislature  of  the  commonwealth  of  Kentucky,  That 
they  do  hereby  most  solemnly  protest,  in  the  name  and  on  the  behalf 
of  the  good  people  of  Kentucky,  against  the  erroneous,  injurious  and 
degrading  doctrines  of  the  opinion  of  the  Supreme  Court  of  the  United 
States,  pronounced  at  the  last  session  of  that  court,  in  the  case  of  Green 
and  Biddle."  Kentucky  Session  Laws,  1823-24,  p.  515. 

^gden  v.  Saunders,  12  Wheat.,  270,  supra,  p.  62. 

'Dartmouth  College  v.  Woodward,  4  Wheat.,  625,  supra,  p.  59. 


76  UXCOXSTITUTIOXAL  LEGISLATION  [IJQ 

ceptible  hesitancy  when  it  concludes  it  must  nullify  an 
act  of  the  state  legislature.  Instead  of  the  great  reluct- 
ance and  regret  with  which  the  court  formerly  approached 
such  a  question  now  it  approaches  it  with  indifference  or 
with  the  air  of  a  superior  about  to  discipline  an  inferior. 
If  the  court  would  exhibit  more  of  its  former  respect  for 
state  statutes  and  show  greater  reluctance  to  interfere 
with  the  legislative  body  of  the  state,  there  would 
perhaps  be  less  said  about  the  interference  of  the  federal 
judiciary  in  state  affairs,  and  also  the  court  would  possi- 
bly be  able  to  escape  part  of  the  criticism  it  now  receives 
because  of  its  alleged  failure  to  interpret  modern  problems 
in  the  light  of  modern  knowledge  and  necessity.  If  the 
Supreme  Court  is  at  liberty  to  nullify  a  state  statute  at 
its  discretion,  without  awakening  any  great  public  clamor 
or  criticism,  is  it  to  be  considered  remarkable  that  the 
court  should,  to  some  extent,  substitute  its  own  dis- 
cretion for  that  of  the  state  ? 


CHAPTER  III 

ANALYSIS  OF  THE  FEDERAL  STATUTES  NULLIFIED  BY  THE 
SUPREME  COURT  OF  THE  UNITED  STATES. 

ALTHOUGH  the  Supreme  Court  nullified  a  federal  act 
very  shortly  after  it  was  organized  (Todd  v.  United 
States1  in  1794),  and  its  power  to  do  so  has  not  been 
seriously  questioned  since  the  decision  of  Marbury  v. 
Madison2  in  1803,  yet  a  study  of  these  cases  shows  that 
the  Supreme  Court  has  used  this  power  rather  sparingly 
so  far  as  federal  statutes  are  concerned.  In  almost  a 
century  and  a  quarter  the  Supreme  Court  has  declared 
invalid  in  whole  or  in  part  because  of  constitutional  con- 
flict thirty-three  United  States  statutes.3  So  far  as  quan- 
tity is  concerned,  therefore,  it  can  scarcely  be  contended 
that  the  court  has  been  intemperate  in  the  use  of  this 
power  in  respect  to  federal  statutes.  But  of  course 
quantity  is  not  the  only  or  the  main  criterion  by  which 
to  judge  of  the  manner  in  which  the  court  has  used  its 
authority.  Another  factor  to  be  considered  is  obviously 
the  character  of  the  statutes  annulled.  Have  these  been 
of  great  and  far-reaching  importance,  and  have  the  deci- 
sions been  of  such  a  nature  as  to  preclude  the  federal 
government  from  solving  properly  those  numerous  and 
important  social  and  economic  problems  which  have 
come  into  existence  since  the  adoption  of  the  constitu- 
tion, are  the  real  questions  to  be  considered. 


1 13  Howard,  52. 

3  See  Appendix  I  for  list  of  cases. 


Cranch,  137. 


77 


78  UNCONSTITUTIONAL  LEGISLATION  [173 

i  The  cases  in  which  statutes  have  been  declared  invalid 
(group  themselves  more  or  less  readily  into  four  classes 
according  to  the  constitutional  character  of  the  acts 
which  have  been  declared  void.  In  making  this  classifi- 
cation, however,  absolute  exactness  is  not  claimed  since 
it  is  quite  possible  that  a  statute  may  violate  more  than 
one  provision  of  the  constitution  ;  also  in  this  grouping 
the  element  of  convenience  of  discussion  has  been  con- 
sidered. These  four  classes  are  as  follows  : 

1.  Laws  disturbing  the  constitutional  position  of  the 
three  branches  of  the  federal  government. 

2.  Laws  disturbing  the  federal  relation  and  encroach- 
ing upon  the  powers  of  the  states. 

3.  Laws  trespassing  upon   the  individual  civil  rights 
guaranteed  by  the  constitution. 

4.  Other  statutes  not  included  in  any  of  the  above. 

Section  1. — Laws  disturbing  the  constitutional  position 
of  the  three  branches  of  the  federal  government: 
13  How.,     52,     United  States  v.  Todd,  1794. 

1  Cranch,  137,    Marbury  v.  Madison,  1803. 

2  Wall.,     561,    Gordon  v.  United  States,  1864. 

3  Wall.,     571,    The  Alicia,  1868. 

13  Wall.,  128,  United  States  v.  Klein,  1871. 
213  U.  S.,  297,  United  States  v.  Evans,  1908. 
219  U.  S.,  346,  Muskrat  v.  United  States,  1910. 

The  first  time  that  the  justices  of  the  Supreme  Court 
expressed  their  opinion  on  the  power  of  the  court  to 
nullify  a  statute  because  of  constitutional  conflict  was  in 
Hayburn's  Case.1  As  previously  indicated,  this  case  was 
never  decided  by  the  Supreme  Court  though  the  justices 
expressed  their  opinions  while  on  circuit.  The  statute 
which  brought  about  a  protest  by  the  justices  in  this  in- 

1  2  Dallas  409,  supra  p.  37- 


NULLIFIED  BY  THE  SUPREME  COURT  79 

stance  was  an  act  which  they  thought  assigned  to  them 
duties  not  judicial  in  nature,  and  which  therefore  en- 
croached upon  the  independence  of  the  judiciary. 

The  first  case  in  which  an  act  of  Congress  was  appar- 
ently declared  unconstitutional  and  hence  void  by  the 
Supreme  Court  wras  United  States  v.  Todd.1  In  this 
case  almost  the  same  question  was  presented  and  the 
principle  involved  was  identical  with  that  of  the  preced- 
ing case,  as  Congress  had,  according  to  the  opinion  of 
the  court,  attempted  to  encroach  upon  the  judiciary  by 
assigning  administrative  duties  to  the  justices. 

In  the  case  which  decided  for  all  time  the  power  of 
the  Supreme  Court  to  declare  an  act  of  Congress  in  con- 
flict with  the  constitution  and  hence  void,  Marbury  v 
Madison,2  a  similar  principle  was  involved  though  th 
facts  are  different.  Congress  had  authorized  the 
Supreme  Court  to  issue  the  writ  of  mandamus  in  its 
original  jurisdiction  in  a  class  of  cases  not  mentioned  in 
the  constitution,  and  it  was  this  statute  which  was  passed 
upon  in  the  famous  decision.  It  was  this  that  gave 
Chief  Justice  Marshall  an  opportunity  to  deliver  his 
epoch-making  opinion,  as  the  decision  held  that  the 
original  jurisdiction  of  the  Supreme  Court  was  defined 
by  the  constitution  and  that  Congress  could  neither  add 
to  nor  subtract  therefrom.  Thus  this  great  case,  how- 
ever far-reaching  the  reasoning  may  be,  was  in  essence 
only  another  attempt  of  the  judiciary  to  maintain  its  in- 
dependence and  prevent  legislative  encroachment. 

The  next  case  but  one  in  which  the  court  felt  called 
upon  to  exercise  again  its  power  of  vitiating  a  federal 
statute  was  Gordon  v.  United  States.3  Congress  had 
created  a  Court  of  Claims  and  provided  for  an  appeal 

1 13  How.  52,  supra  p.  40.  - 1  Cranch  137,  supra  p.  42. 

32  Wall.,  561,  and  117  U.  S.,  697. 


80  UNCONSTITUTIONAL  LEGISLATION 

from  this  tribunal  to  the  Supreme  Court  under  certain 
restrictions.  One  section  of  the  act  provided  that  no 
money  should  be  paid  out  for  any  claim  passed  upon  by 
the  Court  of  Claims  until  after  an  appropriation  had 
been  estimated  by  the  Secretary  of  the  Treasury.  Under 
this  statute,  as  construed  by  the  Supreme  Court,  neither 
'that  tribunal  nor  the  Court  of  Claims  could  do  any- 
thing more  than  certify  their  opinions  to  the  Secre- 
tary of  the  Treasury  and  the  latter  might  or  might  not 
include  the  amount  awarded  in  his  estimates  and  Con- 
gress might  or  might  not  appropriate  the  necessary 
funds.  Neither  court  could,  by  any  process,  enforce  its 
judgment  and  whether  a  claim  adjudged  to  be  due  was 
paid  did  not  depend  upon  the  decisions  of  the  courts 
but  upon  the  discretion  of  the  Secretary  of  the  Treasury 
and  Congress.  The  Supreme  Court  held  that  so  far  as 
it  was  concerned  such  provisions  were  impossible ;  that 
the  Supreme  Court  was  one  of  the  co-ordinate  branches 
of  the  government  and  that  there  was  no  constitutional 
power  in  Congress  or  elsewhere  to  supervise  its  judg- 
ment. It  therefore  refused  to  take  jurisdiction  in  cases 
arising  under  the  statute  and  declared  void  the  part  of 
the  act  attempting  to  confer  such  jurisdiction. 

The  next  year  the  court  again  refused  to  accept  juris- 
diction which  Congress  attempted  to  bestow  upon  it. 
By  statutes  passed  in  1863  and  1864,  regarding  the  de- 
cision of  prize  cases  arising  from  the  Southern  blockade, 
it  was  provided  that  such  cases  might  be  appealed 
directly  from  the  federal  District  Courts  to  the  Supreme 
Court ;  also  that  any  such  cases  then  pending  in  the 
Circuit  Courts  might,  upon  the  application  of  all  parties 
interested,  be  transferred  to  the  Supreme  Court.  It  was 
this  last  clause  that  was  passed  upon  in  The  Alicia.1 

'7  Wall.,  571- 


175] 


NULLIFIED  BY  THE  SUPREME  COURT 


Si 


This  case  had  originally  been  heard  in  the  District  Court 
and  then  appealed  to  the  Circuit  Court  before  the  above 
statute  was  enacted.  Before  the  latter  tribunal  had 
heard  the  case,  following  the  statute,  an  attempt  was 
made  to  appeal  to  the  Supreme  Court,  which  held  that 
since  the  decree  of  the  lower  court  had  been  vacated  by 
the  appeal  to  the  Circuit  Court,  there  was  no  decree  or 
judgment  on  which  the  Supreme  Court  might  act,  and 
hence  that  a  hearing  of  the  case  would  be  in  reality  an 
exercise  of  original  jurisdiction,  while  the  constitution 
allowed  only  appellate  authority  in  such  instances.  The 
court  stated, 

We  are  oblig-ed  to  conclude  that,  in  the  provision  for  transfer, 
an  attempt  was  inadvertently  made  to  give  to  this  court  a 
jurisdiction  withheld  by  the  Constitution,  and,  consequently, 
that  the  order  of  transfer  was  without  effect.  The  cause  is 
still  pending"  in  the  Circuit  Court. 

During  the  stress  and  turmoil  resulting  from  the  Civil 
War,  Congress  exceeded  its  power  and  encroached  upon 
the  spheres  of  both  the  executive  and  the  judiciary  •! 
according  to  the  interpretation  of  the  court.1  The 
national  legislature  had  provided  that  the  government 
would  reimburse  owners  for  certain  classes  of  property 
lost  or  abandoned  during  the  war,  provided  the  owner 
had  given  no  aid  to  the  rebellion,  and  recovery  was  to 
be  made  by  suit  in  the  Court  of  Claims  with  appeal  to 
the  Supreme  Court.  In  a  rider  attached  to  an  appro- 
priation bill  in  i8/o,2  Congress  enacted  in  substance  that 

United  States  v.  Klein,  13  Wall.,  128. 

2i6  Stat.  at  Large,  235.  This  statute  was  presumably  passed  to  pre- 
vent the  court  from  following  the  doctrine  laid  down  in  United  States 
v.  Padelford,  9  Wall.,  531,  which  had  been  decided  about  two  months 
before  the  act  was  passed.  In  this  case  the  court  had  held  that  any  one 
who  had  taken  the  oath  of  allegiance  as  provided  by  statute  and  execu- 
tive proclamation  for  those  who  had  engaged  in  the  Southern  rebellion, 


82  UNCONSTITUTIONAL  LEGISLATION  [176 

no  pardon  or  amnesty  granted  by  the  President  should  be 
admitted  as  evidence  to  support  any  claim  against  the 
United  States  or  to  establish  the  claimant's  right  to  bring 
such  suit,  but  the  proof  of  loyalty  must  be  made  irre- 
spective of  any  executive  action,  and  this  is  "hereby 
declared  to  have  been  and  to  be  the  true  intent  and  mean- 
ing of  said  respective  acts"  [Captured  and  Abandoned 
Property  Acts].  It  was  also  provided  that  if  the  Court 
of  Claims  had,  after  admission  of  such  evidence,  awarded 
judgment  in  favor  of  any  claimant,  the  Supreme  Court  on 
appeal  should  have  no  further  jurisdiction  and  should 
dismiss  the  case. 

The  court  maintained  that  this  involved  the  principle 
of  separation  of  powers  saying,  "  it  is  of  vital  importance 
that  these  powers  be  kept  distinct."  The  statute,  as 
construed,  also  impaired  the  effect  of  a  pardon  and  thus 
infringed  upon  the  constitutional  power  of  the  executive. 
The  court,  however,  objected  more  strenously  to  what  it 
considered  an  attempt  by  Congress  to  prescribe  rules  of 
decision  for  the  judicial  department,  and  to  determine 
the  decision  of  a  judicial  cause  in  a  particular  way,  and 
denied  that  the  statute  was  within  the  acknowledged 
power  of  Congress  to  make  exceptions  to,  and  prescribe 
regulations  for,  the  appellate  power  of  the  court.  The 
act  was,  therefore,  declared  inoperative. 

In  legislating  for  the  District  of  Columbia  Congress 
provided  that, 

In  all  criminal   prosecutions  the  United  States  or  the  Dis- 

was  in  the  eye  of  the  law  "  as  innocent  as  if  he  had  never  committed 
the  offense."  By  this  interpretation  of  the  Captured  and  Abandoned 
Property  Act  certain  persons,  provided  they  had  taken  the  oath  of  alle- 
giance, were  enabled  to  sue  the  United  States  government  for  property 
lost  during  the  Civil  War,  though  such  persons  had  voluntarily  given 
aid  to  the  enemy.  Naturally  the  later  attempt  of  Congress  to  control 
the  court's  decision  was  irritating  to  the  latter. 


177]  NULLIFIED  BY  THE  SUPREME  COURT  83 

trict  of  Columbia,  as  the  case  may  be,  shall  have  the  same 
right  of  appeal  as  is  given  to  the  defendant,  including  the 
right  to  a  bill  of  exceptions  ;  provided,  that  if  on  such  appeal 
it  shall  be  found  that  there  was  error  in  the  rulings  of  the 
court  during:  the  trial,  a  verdict  in  favor  of  the  defendant 
shall  not  be  set  aside.' 

Under  this  statute  an  appellate  court  of  the  District  of 
Columbia  refused  jurisdiction  when  an  attempt  was  made 
to  appeal  a  case,  and  the  Supreme  Court  of  the  United 
States  upheld  this  ruling.2  The  Supreme  Court  took 
the  position  that  this  was  in  reality  but  giving  an  i 
opinion  on  questions  of  law  which  were  not  before  it  in 
a  "  case,"  and  that  while  this  duty  was  required  of  some 
state  tribunals,  "  No  such  requirement  obtains  in  Federal 
jurisprudence,"  and,  "  It  was  long  ago  held  by  this  court, 
that  the  discharge  of  such  a  function  was  not  an  exercise 
of  judicial  power." 

In  Muskrat  v.  United  States3  a  peculiar  legislative  act 
was  under  consideration.  Congress  provided  that  cer- 
tain Cherokee  Indian  claimants  indicated  by  name,  might, 
on  their  own  behalf  or  on  the  behalf  of  others  similarly 
situated,  institute  suit  in  the  Court  of  Claims  with  the 
right  of  appeal  to  the  Supreme  Court  to  determine  the 
validity  of  any  acts  of  Congress  passed  since  1902, 
affecting  the  allotment  of  Cherokee  lands.  The  Attor- 
ney General  of  the  United  States  was  authorized  to  de- 
fend such  suits  and  other  attorney  fees,  under  certain 
contingencies,  were  to  be  determined  by  the  court  giving 
final  judgment  and  to  be  paid  out  of  funds  in  the  pos- 
session of  the  United  States  government  but  belonging 
to  the  beneficiaries  under  the  statutes  indicated.  The 

'31  Statutes  at  Large,  1341. 

2 United  States  v.  Evans,  213  U.  S,  297.  32ig  U.  S.,  346. 


84  UNCONSTITUTIONAL  LEGISLA TION  [ :  78 

court  declared  that  although  the  United  States  was 
made  technically  a  party  to  the  suit  it  had  no  interest  ad- 
verse to  the  claimants ;  that  Congress  was  making  an 
attempt  to  obtain  a  judicial  declaration  of  the  validity  of 
a  statute  though  the  question  was  not  presented  in  the 
form  of  a  "  case  "  or  4<  controversy  "  to  which  the  judicial 
power  constitutionally  extends ;  that  the  question  was 
not  presented  in  such  a  manner  that  a  binding  and  con- 
clusive judgment  could  be  rendered.  The  court  refused 
to  take  jurisdiction  and  declared  the  statute  invalid. 

It  will  thus  be  seen  that  in  attempting  to  maintain  the 
balance  of  power  between  the  three  great  branches  of 
government  the  court  has  shown  no  tendency,  by  declar- 
ing statutes  invalid,  to  enlarge  its   own  jurisdiction   to 
any  extent.     Of  the  seven  statutes  nullified,  in  whole  or 
in  part,  because  of  a  violation  of  this  principle,  the  court 
,was  not  extending  its  jurisdiction  beyond  the  limits  de- 
fined by  the  offending  statute  but  in  each  case,  with  but 
one  exception,  it  was  voluntarily  limiting  or  refusing  the 
jurisdiction  which  Congress  was  attempting  to  bestow 
upon  it.     The  court   has  in  only  one  instance  declare* 
invalid  a  statute  attempting  to  limit  its  jurisdiction.     I: 
this  instance  x  the  cases  \vhich  it  included  by  this  mean 
were  of  a  particular  class,  limited  in  number,  and  whic 
from    the    circumstances    would    continually    decrease 
Hence  it  is  quite  safe  to  say  that  the  Supreme  Court  o 
the  United  States  has  not  extended  its  jurisdiction  un 
duly  by  its  power  of  nullifying  statutes  because  of  con 
flict  with  the  principle  under  discussion,  and   whateve 
increase  of  jurisdiction  it  may  have  acquired  has  beer 
obtained  by  other  means. 

Moreover  it  is  worthy  of  note  that  all  these  statute 

•United  States  v.  Klein,  supra  p.  81. 


179]  NULLIFIED  BY  THE  SUPREME  COURT  85 

referred  to  the  judiciary  alone,  and  in  no  instance  was  a 
federal  act  nullified  because  of  an  alleged  attempt  to  be-  h  / 

stow  judicial  powers  on  other  branches  of  the  govern- 
ment. While  it  is  axiomatic  in  this  country  that  no 
branch  of  the  government  may  exercise  judicial  powers 
except  the  judiciary,  yet  with  the  growing  complexity  of 
the  government  it  has  been  recognized  that  power  very 
closely  allied  to  the  judicial  must  be  exercised  by  the  ad- 
ministration if  the  latter  is  not  to  be  hampered  in  its 
legitimate  work.  With  the  tendency  of  Congress  to  be- 
stow more  and  more  of  this  quasi-judicial  authority  on 
administrative  officials,  the  court  has  not  interfered  by 
its  power  to  declare  statutes  unconstitutional.  In  all 
cases  in  which  the  court  has  nullified  a  statute  because 
of  conflict  with  the  constitutional  separation  of  powers  it 
has  done  so  in  order  to  defend  its  own  independence  and, 
with  one  riot  important  exception,  it  has  uniformly 
limited  its  own  authority.  Also  it  is  worthy  of  note 
that  in  two  of  the  three  instances  in  which  the  court 
nullified  a  federal  statute  up  to  1866,  it  was  simply  pro- 
tecting its  own  jurisdiction  and  in  no  way  interfering 
with  the  general  activities  of  Congress. 

Section  2. — Statiites  disturbing  federal  relations  and 
encroaching  upon  the  powers  of  the  states: 

9  Wall.,    41,  United  States  v.  Dewitt,  1869. 
ii  Wall,  113,  The  Collectors  v.  Day,  1870. 
17  Wall.,  322,  United    States    v.  The    Railroad    Co., 

1872. 

92  U.  S.,  214,  United  States  v.  Reese,  1875. 
95  U.  S.,  670,  United  States  v.  Fox,  1877. 
100  U.  S.,    82,  Trade  Mark  Cases,  1879. 
1 06  U.  S.,  629,  United  States  v.  Harris,  1882. 
109  U.  S.,      3,  Civil  Rights  Cases,  1883. 


86 


UNCONSTITUTIONAL  LEGISLA  TIOX 


[1 80 


120  U.  S.,  678,  Baldwin  v.  Franks,  1886. 

190  U.  S.,  127,  James  v.  Bowman,  1903. 

207  U.  S.,  463,  Employers'  Liability  Cases,  1907. 

213  U.  S.,  138,  Keller  v.  United  States,  1908. 

In  this  class  of  cases  there  is  frequently  no  specific 
clause  of  the  constitution  on  which  the  court  can  base 
its  decision  but  in  a  federal  form  of  government,  ob- 
viously, both  the  state  and  national  governments  must 
exist ;  also  it  is  insisted  that  each  must  have  its  own 
sphere  of  activities  and  neither  can  trespass  upon  that  of 
the  other,  for  if  these  conditions  are  not  maintained  the 
federal  scheme  will  be  transformed  into  a  unitary  gov-; 
ernment  or  be  dissolved  into  its  component  states.  The 
Supreme  Court  has  frequently  held,1  that  owing  to  the 
inherent  characteristics  of  the  federal  form  of  govern-^ 
ment  and  also  to  the  fact  that  the  constitution  provides 
that  the  United  States  has  only  delegated  powers,  and 
powers  not  delegated  to  the  United  States  government 
are  reserved  to  the  people  or  to  the  states,2  that  statutes, 
either  state  or  national,  which  impair  this  balance  of  the 
two  governments,  are  improper  and  cannot  exist  even 
though  there  is  no  specific  clause  of  the  Constitution 
violated. 

The  first  case  in  which  the  Supreme  Court  decided 
that  a  federal  statute  conflicted  with  the  principle  men- 
tioned above  was  United  States  v.  DeWitt.3  In  the  In- 
ternal Revenue  Act  of  1867,  Congress  forbade  the  sale  of 
certain  inflammable  illuminating  oils.  The  court  in  a 
short  opinion  held  this  was  improper ;  that  this  was 

1  In  addition  to  the  cases  discussed  in  this  chapter,  see  e.  g.  Dobbins 
v.  Commissioners,  16  Peters,  435;  McCulloch  v.  Maryland,  4  Wheat., 
316;  Weston  v.  Charleston,  2  Peters,  440;  Lane  County  v.  Oregon,  7; 
Wall.,  71. 

*ioth  Amendment.  :<9  Wall.,  41. 


!8i]  NULLIFIED  BY  THE  SUPREME  COURT  87 

purely  a  police  regulation,  and  in  attempting  such  regu- 
lations Congress  was  encroaching  upon  the  police  power 
vested  in  the  states. 

Another  case  in  which  the  court  had  to  pass  upon  the 
question  of  federal  relations  because  of  a  national  statute 
was  Collector  v.  Day.1  In  certain  laws  passed  between 
1864  and  1867  Congress  had  provided  that, 

There  shall  be  levied,  collected,  and  paid  annually  upon  the 
gains,  profits,  and  incomes  of  every  person  residing  in  the 
United  States  ....  whether  derived  from  any  kind  of  prop- 
erty, rents,  interests,  dividends,  or  salaries,  or  from  any  pro- 
fession, trade,  employment  or  vocation,  carried  on  in  the 
United  States  or  elsewhere,  or  from  any  other  source  what- 
ever, a  tax  of  5  per  centum  on  the  amount  so  derived,  over 
$1000. 

With  this  statute  on  the  books  an  attempt  was  made  to 
collect  the  tax  on  the  salary  of  a  Massachusetts  judge. 
The  court  held  the  enactment  to  be  inoperative  as  ap- 
plied to  the  salaries  of  state  officials;  that  it  was  intended 
by  the  constitution  to  maintain  the  integrity  of  both  the 
state  and  national  governments  and  neither  could  infringe 
upon  the  legitimate  powers  of  the  other;  and  that  tax- 
ing the  salary  of  an  officer  of  one  government  by  the 
other  was  an  interference  which  could  not  be  tolerated. 

Two  years  after  the  above  case  was  decided  the  court 
again  found  it  necessary*' to  restrict  the  money-raising 
activities  of  Congress  because  of  an  encroachment  upon 
the  sphere  of  the  state.2  As  one  of  its  war  measures 

1n  Wall.,  113.  This  is  the  reverse  side  of  the  question  decided  in 
Dobbins  v.  Commissioners,  16  Peters,  435.  In  this  latter  instance  the 
court  had  prevented  the  state  from  levying  a  tax  on  a  federal  officer 
as  such. 

2 United  States  v.  Railroad  Co.,  17  Wall.,  322. 


* 


88  UNCONSTITUTIONAL  LEGISLATION  [i£2 

Congress  had  provided  that  the  bond  interest  and  divi- 
dends of  all  transportation  companies  should  be  taxed, 
the  companies  themselves  deducting  the  tax  from  such 
interest  or  dividends  and  paying  it  into  the  United  States 
treasury.  Prior  to  this  time  the  city  of  Baltimore  had 
issued  bonds  and  used  the  proceeds  to  aid  in  the  con- 
struction of  a  railroad,  the  road  giving  the  city  a  mort- 
gage on  its  property.  United  States  officials  attempted 
to  collect  the  tax  on  the  mortgage  interest  payable  to 
the  city.  The  court  held  that  the  municipal  corporation 
was  so  much  a  part  of  the  state  that  its  acts  were  the 
same  as  the  acts  of  the  state  itself  so  far  as  the  federal 
government  was  concerned.  As  the  city  had  acted  en- 
tirely for  the  public  good  and  not  in  its  private  capacity, 
the  income  of  the  city  could  no  more  be  taxed  than 
could  that  of  the  state  and  the  statute  was  to  this  extent 
invalid.1 

In  1870  Congress  passed  a  rather  sweeping  act,2  sup- 
posedly based  on  the  recently  adopted  fifteenth  amend- 
ment, in  regard  to  the  right  to  vote.  Portions  of  the 
act  recognized  the  fact  that  this  amendment  applies  only 
to  cases  of  disfranchisement  on  account  of  race,  color  or 
previous  condition  of  servitude,  but  other  parts,  as  con- 
strued by  the  court,  went  beyond  this  and  attempted  to 
guarantee  suffrage  to  citizens  generally  and  provided 
penalties  for  any  who  should  attempt  to  interfere 
with  this  right.  The  court  held  in  United  States  v. 
Reese3  that  this  was  not  "  appropriate  legislation"  under 
the  fifteenth  amendment.  It  was  maintained  that  the 
United  States  had  but  narrow  power  under  this  amend- 
ment, and  that  plainly  it  is  only  when  the  states  refuse 

1  For  a  later  interpretation  of  this  principle,  see  South  Carolina  v. 
United  States,  199  U.  S.,  437,  infra  note,  p.  99. 
2i6  Statutes  at  Large,  140.  "92  U.  S.,  214. 


183] 


NULLIFIED  BY  THE  SUPREME  COURT 


a  citizen  a  right  to  vote  because  of  race,  color  or  pre- 
vious condition  of  servitude  that  Congress  may  appro- 
priately act;  that  any  legislation  beyond  this  regulates 
local  elections  in  excess  of  the  powers  of  Congress; 
hence  the  act  was  held  to  be  iiltra  vires  and  an  encroach- 
ment upon  the  powers  of  the  states. 

In  the  supposed  exercise  of  its  power  over  bankruptcy 
the  national  legislature  provided  for  the  criminal  punish- 
ment of  any  one  who,  within  three  months  before  bank- 
ruptcy proceedings  were  commenced,  had  obtained  goods 
with  the  intent  to  defraud.  The  court,1  while  recogniz- 
ing that  Congress  had  power  to  enact  any  legislation 
necessary  to  execute  its  constitutional  authority,  yet 
held  that, 

an  act  committed  within  a  state,  whether  for  a  good  or  bad 
purpose,  or  whether  with  an  honest  or  criminal  intent,  cannot 
be  made  an  offense  against  the  United  States,  unless  it  have 
some  relation  to  the  execution  of  a  power  of  Congress,  or  to 
some  matter  within  the  jurisdiction  of  the  United  States.  An 
act  not  having  any  such  a  relation  is  one  in  respect  to  which 
the  state  alone  can  legislate. 

The  act  described  ...  is  one  which  concerns  only  the  State 
in  which  it  is  committed :  it  does  not  concern  the  United 
States. 

The  act  consequently  was  of  no  force  or  effect. 

Congress  inspired  presumably  either  because  of  its 
power  to  provide  for  the  issuance  of  copyrights  and 
patents  or  because  of  its  control  over  interstate  com- 
merce, in  two  acts  of  1870  and  1876,  forbidding  any 
counterfeiting  or  use  of  trademarks  by  others  than  the 
registered  users,  attempted  to  give  to  the  latter  about 
the  same  protection  as  the  owner  of  a  patent  or  copy- 
United  States  v.  Fox,  95  U.  S.,  670. 


UNCONSTITUTIONAL  LEGISLATION 


[184 


Vi 


right.  The  court  held1  that  trademarks  could  not  come 
under  the  patent  or  copyright  powers  of  Congress; 
neither  could  the  act  be  upheld  because  of  the  commerce 
clause  since  it  was  general  in  its  terms  and  not  limited 
to  interstate  or  foreign  commerce.  Hence  the  statute 
was  ultra  vires,  and  an  attempted  use  by  Congress  of 
power  which  belonged  to  the  states  since  general  con- 
trol of  property  rights  is  vested  in  the  latter. 

Congress  again  testing  its  powers  under  the  recently 
adopted  amendments,  in  1871  passed  an  act  providing 
that  if  two  or  more  persons  conspired  to  deprive  any 
one  or  any  class  of  persons  of  the  equal  protection  of  the 
law,  they  would  be  liable  to  criminal  prosecution  and 
punishment.  Again  the  court  objected  in  United  States 
v.  Harris,2  and  substantially  repeating  the  opinion  it  had 
already  expressed  in  other  cases,3  that  the  fifteenth 
amendment  obviously  applied  only  to  those  instances 
where  the  right  to  vote  was  denied  because  of  race, 
color,  or  previous  condition  of  servitude,  and  hence 
afforded  no  basis  for  the  statute  in  question ;  that  the 
fourteenth  amendment  provided  only  against  state  action 
and  did  not  permit  the  United  States  to  legislate  regard- 
ing the  action  of  individuals ;  that  the  thirteenth  amend- 
ment prohibiting  slavery  did  not  warrant  such  an  act ; 
and  finally  that  article  iv,  section  2,  of  the  constitution 
guaranteeing  the  citizens  of  each  state  all  the  privileges 
and  immunities  of  citizens  of  the  several  states  is  directed 
exclusively  to  state  action.  The  court  could  find  no 
constitutional  basis  for  the  statute  in  question,  and  it 
was  accordingly  declared  invalid. 

Another   result    of  the  reconstruction  and  the  newly 

1  Trade  Mark  Cases,  100  U.  S.,  82.  2 106  U.  S.,  629. 

"See  e.  g.  U.   S.  v.  Reese,  92  U.   S.,  214,  supra,  p.  88;  U.  S.  v. 
Cruikshank,  92  U.  S.,  542;  Paul  v.  Virginia,  8  Wall.,  168. 


!85]  NULLIFIED  B}    THE  SUPREME  COURT  91 

adopted  amendments  was  an  act  of  Congress  attempting 
to  guarantee  to  all  equal  rights  and  accommodations  in 
public  conveyances  and  places  of  public  amusement  or 
entertainment,  and  this  act  was  to  be  "  applicable  alike  to 
citizens  of  every  race  and  color,  regardless  of  any  previ- 
ous condition  of  servitude."  Several  prosecutions  arose 
under  this  act  and  were  heard  together  under  the  title 
of  the  Civil  Rights  Cases.1  The  court  discussed  fully 
the  fourteenth  amendment  and  the  power  which  Congress 
has  under  it.  On  this  point  the  court  states : 

It  is  state  action  of  a  particular  character  that  is  prohibited 
[by  the  amendment] .  Individual  invasion  of  individual  rights 
is  not  the  subject  matter  of  the  amendment.  It  has  a  deeper 
and  broader  scope.  It  nullifies  and  makes  void  all  State 
legislation,  and  State  action  of  every  kind,  which  impairs  the 
privileges  and  immunities  of  citizens  of  the  United  States,  or 
which  injures  them  in  life,  liberty  or  property  without  due 
process  of  law,  or  which  denies  to  any  of  them  the  equal  pro- 
tection of  the  laws.  It  not  only  does  this,  but,  in  order  that 
the  national  will,  thus  declared,  may  not  be  a  mere  brutum 
fulmen,  the  last  section  of  the  amendment  invests  Congress 
with  the  power  to  enforce  it  by  appropriate  legislation.  To 
enforce  what?  To  enforce  the  prohibition.  To  adopt  ap- 
propriate legislation  for  correcting  the  effects  of  such  pro- 
hibited State  laws  and  State  acts,  and  thus  to  render  them 
effectually  null,  void,  and  innocuous.  This  is  the  legislative 
power  conferred  upon  Congress,  and  this  is  the  whole  of  it. 
It  does  not  invest  Congress  with  power  to  legislate  upon  sub- 
jects which  are  within  the  domain  of  State  legislation  ;  but  to 
provide  modes  of  relief  against  State  legislation,  or  State 
action,  of  the  kind  referred  to.2 

1  IOQ  U.  S.,  3.  Cf.  Slaughter  House  Cases,  16  Wall.,  36,  1872,  in  which 
the  court  first  gave  a  general  review  of  the  newly  adopted  amendments. 

'Also  the  thirteenth  amendment  was  considered  and  the  court  held 
that  mere  discrimination  in  public  places  was  not  slavery  nor  any  servi- 
tude prohibited  by  the  thirteenth  amendment. 


92  UNCONSTITUTIONAL  LEGISLATION 

The  power  which  Congress  has  to  pass  appropriate  leg- 
islation thus  extends  only  to  corrective  legislation, 
/'.  e.,  in  effect  Congress  may  simply  provide  proper 
modes  of  appeal  from  the  state  to  the  federal  courts  and 
cannot  itself  aid  any  one  who  has  been  denied  the  rights 
p  guaranteed  by  the  fourteenth  amendment.  By  this  inter- 
pretation the  court  drew  into  its  own  hands  the  entire 
effective  power  which  was  given  the  federal  government 
by  this  amendment.  It  is  to  determine  if  the  states 
have,  by  any  official  act,  violated  the  provisions  of  the 
amendment.  The  court  secured  no  positive  authority 
over  the  states,  but  it  does  have  large  negative  power  by 
virtue  of  its  authority  to  determine  what  they  may  not 
do,  but  Congress  was  left  with  neither  positive  nor 
negative  power.  It  is  true  that  the  court  before  this 
had  exercised  considerable  control  over  the  states  largely 
because  of  the  commerce  and  obligation  of  contract 
clauses1  of  the  constitution,  but  by  thus  interpreting 
the  fourteenth  amendment  it  vastly  increased  its  in- 
fluence over  the  states.  This  control  was  still  further 
augmented  when  the  amendment  was  turned  from  its 
original  purpose  to  shield  the  negro  race,2  and  used  to 

1  Art.  i,  sections  8  and  10.     See  Appendix  V  for  list  of  cases  in  which 
state  statutes  have  been  nullified  by  the  Supreme  Court  of  the  United 
States  because  of  conflict  with  these  clauses. 

2  Cf.  "On  the  most  casual  examination  of   the    language  of   these 
amendments,  no  one  can  fail  to  be  impressed  with  the  one  prevailing 
purpose  found  in  them  all,  lying  at  the  foundation  of  each,  and  without 
which  none  of  them  would  have  been  even  suggested;  we  mean  the 
freedom  of  the  slave  race,  the  security  and  firm  establishment  of  that 
freedom,  and  the  protection  of  the  newly  made  freeman  and  citizen 
from  the  oppressions  of  those  who  had  formerly  exercised  unlimited 
dominion  over  him.     It  is  true  that  only  the  fifteenth  amendment,  in 
terms,  mentions  the  negro  by  speaking  of  his  color  and  his  slavery. 
But  it  is  just  as  true  that  each  of  the  other  articles  was  addressed  to  the 
grievances  of  that  race,  and  designed  to  remedy  them  as  the  fifteenth. 


i87] 


NULLIFIED  BY  THE  SUPREME  COURT 


93 


protect  property  rights.     In  the  case  under  discussion  /  .   . 
the  court  by  denying  to  Congress  any  positive  power  j 
and  indicating  the  matter  in  which  the  provisions  of  the 
fourteenth  amendment  were  to  be  executed,  very  greatly 
increased    the  influence  of  the  judiciary,  and  this  too  at    /    , 
the  expense  of  a  co-ordinate  branch  of  the  government.1 

"  We  do  not  say  that  no  one  else  but  the  negro  can  share  in  this  pro- 
tection. Both  the  language  and  the  spirit  of  these  articles  are  to  have 
their  fair  and  just  weight  in  any  question  of  construction.  Undoubtedly 
while  negro  slavery  alone  was  in  the  mind  of  Congress  which  proposed 
the  thirteenth-  article,  it  forbids  any  other  kind  of  slavery,  now  or  here- 
after. If  Mexican  peonage  or  the  Chinese  coolie  labor  system  shall 
develop  slavery  of  the  Mexican  or  Chinese  race  within  our  territory, 
this  amendment  may  be  safely  trusted  to  make  it  void.  And  so  if  other 
rights  are  assailed  by  the  States  which  properly  and  necessarily  fall 
within  the  protection  of  these  articles,  that  protection  will  apply,  though 
the  party  interested  may  not  be  of  African  descent.  But  what  we  do 
say,  and  what  we  wish  to  be  understood  is,  that  in  any  fair  and  just 
construction  of  any  section  or  phrase  of  these  amendments,  it  is  neces- 
sary to  look  to  the  purpose  which  we  have  said  was  the  prevailing  spirit 
of  them  all,  the  evil  which  they  were  designed  to  remedy,  and  the  pro- 
cess of  continued  addition  to  the  Constitution,  until  that  purpose  was 
supposed  to  be  accomplished,  as  far  as  constitutional  law  can  accomplish 
it."  Slaughter  House  Cases,  16  Wall.,  36,  71. 

*A  justice  of  the  court  thus  expresses  his  opinion  of  this  decision: 
"This  court  has  always  given  a  broad  and  liberal  construction  to  the 
constitution,  so  as  to  enable  Congress,  by  legislation,  to  enforce  rights 
secured  by  that  instrument.  The  legislation  which  Congress  may  enact, 
in  execution  of  its  power  to  enforce  the  provisions  of  this  amendment, 
is  such  as  may  be  appropriate  to  protect  the  right  granted.  The  word 
appropriate  was  undoubtedly  used  with  reference  to  its  meaning,  as 
established  by  repeated  decisions  of  this  court.  Under  given  circum- 
stances, that  which  the  court  characterizes  as  corrective  legislation 
might  be  deemed  by  Congress  appropriate  and  entirely  sufficient. 
Under  other  circumstances  primary  direct  legislation  may  be  required. 
But  it  is  for  Congress,  not  the  judiciary,  to  say  what  legislation  is  appro- 
priate— that  is— best  adapted  to  the  end  to  be  attained.  The  judiciary 
may  not,  with  safety  to  our  institutions,  enter  the  domain  of  legislative 
discretion,  and  dictate  the  means  which  Congress  shall  employ  in  the 
exercise  of  its  granted  powers.  That  would  be  sheer  usurpation  of  the 
functions  of  a  coordinate  department,  which,  if  often  repeated,  and  per- 


94  UNCONSTITUTIONAL  LEGISLATION  [ItS8 

The  last  case '  in  which  an  act  of  Congress  supposedly 
based  on  the  fifteenth  amendment  was  declared  uncon- 
stitutional was  James  v.  Bowman,2  in  1902,  though  the 
statute  in  question  was  passed  in  1870.  One  section  of 
the  act  forbade  interference  by  threats  or  bribery  with 
any  one  exercising,  or  attempting-  to  exercise,  the  right  to 
vote  to  whom  that  right  was  guaranteed  by  the  fifteenth 
amendment.  The  court  held  that  Congress  had  exceeded 
its  powers,  inasmuch  as  the  statute  was  aimed  at  the  acts 
of  the  individual  and  the  court  had  already  objected  to 
this ; 3  neither  could  the  act  be  upheld  because  of  the 
control  which  Congress  has  over  certain  elections,  as  the 
act  applied  to  all  elections,  and  "  Congress  has  no  power 
to  punish  bribery  at  all  elections.  The  limits  of  its 
powers  are  in  respect  to  elections  in  which  the  nation  is 
directly  interested,  or  in  which  some  mandate  of  the 
National  Constitution  is  disobeyed,"  and  the  court  re- 
fused to  limit  a  statute  general  in  its  terms  to  those  par- 
ticulars which  Congress  could  constitutionally  regulate. 

The  cases  immediately  preceding  grew  out  of  statutes 
passed  during  the  Civil  War  and  its  aftermath,  the  period 

manently  acquiesced  in,  would  work  a  radical  change  in  our  system  of 
government."  Dissenting  opinion  of  Justice  Harlan,  Civil  Rights 
Cases,  109  U.  S.,  50. 

lln  Baldwin  v.  Franks,  120  U.  S.,  678,  the  constitutional  validity  of 
the  same  statute  which  was  passed  upon  and  found  wanting  in  United 
States  v.  Harris  (supra,  p.  90)  was  again  considered.  The  facts  in  the 
two  cases  differed.  In  the  Harris  case  the  conspiracy  forbidden  by  the 
statute  was  alleged  to  have  been  formed  by  citizens  of  the  United  States 
against  other  citizens.  In  Baldwin  v.  Franks  the  alleged  conspiracy 
was  against  alien  Chinese,  and  it  was  contended  that  while  the  statute 
was  inoperative  in  the  first  case  it  might  be  valid  in  the  second.  The 
court  held  to  its  previous  decision  that  the  statute  was  void  within  a  state 
regardless  of  particular  facts. 

2 190  U.  S.,  127. 

.  g.,  Civil  Rights  Cases,  supra,  p.  gr. 


\TLLIFIED  BY  THE  SUPREME  COURT  ()~ 

of  Reconstruction.  The  next  case  chronologically  in  this 
class,  however,  deals  with  an  entirely  new  subject  —  an 
attempt  on  the  part  of  Congress  to  solve  one  of  the  more 
pressing  industrial  problems  of  the  day,  and  the  attempt 
was  checked  to  some  extent  by  the  court  in  the  Em-^1  Q 
ployers'  Liability  Cases.1  The  Congressional  act2  pro- 
vided that  every  common  carrier  engaged  in  trade  in  the 
District  of  Columbia,  in  the  territories  or  in  interstate  or 
foreign  traffic  was  liable  to  its  employees  for  any  injuries 
to  them  because  of  negligence  of  the  company's  officers 
or  employees  or  because  of  defective  appliances  or  ma- 
chinery. Not  only  did  the  act  thus  abrogate  the  fellow- 
servant  rule  of  the  common  law  but  it  also  in  another 
section  rendered  less  harsh  the  doctrine  of  contributory 
negligence.  When  the  question  of  the  validity  of  this 
statute  was  presented  to  the  court  five  separate  opinions 
were  handed  down,  and  as  a  result  it  is  somewhat  diffi- 
cult to  say  by  an  examination  of  the  case  exactly  what 
was  decided.  However,  by  the  concurrence  of  five  of 
the  justices  the  act  was  declared  unconstitutional  because  j  » 
it  was  general  in  its  terms,  including  intrastate  as  well  as  ' 
interstate  commerce,  and  hence  was  ultra  vires  and  void. 
The  opinion  of  the  court,  entirely  concurred  in  by  only 
one  justice  other  than  the  writer  of  it,  held  that  Congress 
had  power  to  pass  such  an  act  provided  it  was  limited  to 
interstate  commerce.  Three  of  the  justices,  while  con- 
curring in  the  opinion  that  the  statute  was  unconstitu- 
tional for  the  reasons  stated,  did  not  agree  with  all  that 
part  of  the  opinion  which  held  that  Congress  could  reg- 
ulate the  relations  between  employer  and  employee  even 
when  both  were  engaged  in  interstate  commerce.  Three 
of  the  four  dissenting  justices  expressly  affirmed  the 


207  U.  S.,  463.  -32  Statutes  at  Large,  232. 


96  UNCONSTITUTIONAL  LEGISLATION  [igO 

power  of  Congress  to  pass  acts  regulating  the  relations 
between  employer  and  employee  engaged  in  interstate  \ 
commerce,  and  the  fourth  dissenting  justice  impliedly 
gave  his  assent  to  this  doctrine,  since  he  held  that  it  was 
possible  to  so  interpret  the  present  statute  as  to  make  it 
constitutional.  In  other  words,  in  dealing  with  one  of 
the  more  pressing  industrial  problems  the  court  struck  a 
compromise.  It  was  willing,  as  indicated  by  the  indi- 
vidual expressions  of  the  justices,  to  allow  Congress  to 
legislate  regarding  the  relations  between  employee  and 
employer,  and  abrogate  some  of  the  outgrown  common- 
law  doctrines,  so  far  as  these  employees  were  engaged 
solely  in  interstate  commerce.  When,  however,  it  came 
to  intrastate  traffic,  even  though  that  traffic  might  be 
conducted  by  companies  which  also  did  interstate  com- 
merce, it  held  to  the  old  doctrine  that  this  is  purely  a 
state  matter,  and  hence  beyond  the  power  of  Congress 
to  regulate.  Three  of  the  justices,  however,  refused  to 
agree  with  the  court  that  Congress  could  regulate  the 
relations  between  employee  and  employer  even  in  inter- 
state commerce.1 

Congress  almost  immediately  embodied  the  essential  features  of  this 
act  in  another  statute  but  limiting  its  application  to  interstate  commerce 
by  railroad  and  to  railroad  common  carriers  generally  in  the  territories 
and  possessions  (35  Stat.  at  Large,  65,  and  36  Stat.  at  Large,  291).  The 
statute  thus  amended  was  reviewed  by  the  court  in  the  Second  Employ- 
ers' Liability  Cases,  223  U.  S.,  I.  The  court,  holding  to  the  opinion  of 
the  majority  of  the  justices  in  the  previous  Liability  Cases,  stated  "  that 
Congress,  in  the  exertion  of  its  power  over  interstate  commerce,  may 
regulate  the  relations  of  common  carriers  by  railroad  and  their  em-/ 
ployees,  while  both  are  engaged  in  such  commerce,  subject  always  to. 
the  limitations  prescribed  in  the  Constitution,  and  to  the  qualification 
that  the  particulars  in  which  those  relations  are  regulated  must  have  a> 
real  or  substantial  connection  with  the  interstate  commerce  in  which  the 
carriers  and  their  employees  are  engaged."  The  court  then  considered'^ 
other  objections  argued  against  the  statute,  mostly  of  a  minor  nature, f 
and  upheld  the  act. 


I9I]  NULLIFIED  BY  THE  SUPREME  COURT  97 

In  Keller  v.  United  States  *  the  national  government 
was  attempting  to  deal  with  an  old  evil,  but  by  the  more 
effective  means  demanded  by  a  newly-awakened  con- 
sciousness of  the  extent  and  viciousness  of  the  evil. 
Congress  in  seeking  some  remedy  for  the  "white  slave" 
traffic  provided  that  any  one  who  was  in  any  way  instru- 
mental in  the  importation  of  women  for  immoral  pur- 
poses was  guilty  of  a  felony;  the  same  act  also  provided 
that  any  one  who  harbored,  for  immoral  purposes,  any  \ 
alien  woman  within  three  years  from  the  time  she  /  / 1 
entered  the  country,  was  likewise  guilty  of  felony.  It 
was  this  latter  part  of  the  statute  that  was  attacked  as 
unconstitutional.  The  court,  while  again  affirming  the 
power  of  Congress  to  exclude  aliens,  to  prescribe  the 
terms  on  which  they  might  enter  the  country  or  to  pro- 
vide for  their  deportation,  held  that  Congress  had  over- 
stepped its  constitutional  limits  in  this  instance. 

While  the  keeping  of  a  house  of  ill-fame  is  offensive  to  the 
moral  sense,  yet  that  fact  must  not  close  the  eye  to  the  ques- 
tion whether  the  power  to  punish  therefor  is  delegated  to 
Congress  or  is  reserved  to  the  State.  Jurisdiction  over  such 
an  offense  comes  within  the  accepted  definition  of  the  police 
power.  Speaking-  generally,  that  power  is  reserved  to  the 
States,  for  there  is  in  the  Constitution  no  grant  thereof  to 
Congress. 

The  court  held  that  this  was  not  legislation  respecting 
the  conduct  of  an  alien  while  domiciled  in  this  country, 
nor  was  it  respecting  any  wrong  done  such  a  person  as 
no  wrong  was  alleged,  but  the  act  attempted  to  control 
generally  the  dealings  of  citizens  with  aliens.  The 
opinion  declared  if  this  was  permitted, 

12I3U.  S.,  I38. 


98  UNCONSTITUTIONAL  LEGISLATION  [Io,2 

We  should  be  brought  face  to  face  with  such  a  change  in  the 
internal  conditions  of  this  country  as  was  never  dreamed  of 
by  the  framers  of  the  Constitution.  While  the  acts  of  Con- 
gress are  to  be  liberally  construed  in  order  to  enable  it  to 
carry  into  effect  the  powers  conferred,  it  is  equally  true  that 
prohibitions  and  limitations  upon  those  powers  should  also 
be  fairly  and  reasonably  enforced.  To  exaggerate  in  the  one 
direction  and  restrict  in  the  other  will  tend  to  substitute  one 
consolidated  government  for  the  present  Federal  system.  We 
should  never  forget  .  .  .  that  "the  Constitution,  in  all  its 
provisions,  looks  to  an  indestructible  Union,  composed  of  in- 
destructible States." 

Hence  the  part  of  the  act  under  consideration  was  de- 
clared without  constitutional  basis  and  consequently 
void.  By  this  decision  the  country  was  denied  the  right 
to  take  one  of  the  most  effective  measures  which  the 
national  government  might  have  adopted  to  wipe  out 
this  ancient  and  vicious  evil, — and  the  matter  left  largely  ; 
to  the  care  or  the  indifference  of  forty-eight  separate 
states. 

In  the  above  an  attempt  has  been  made  to  analyze  the 
statutes  which  have  been  annulled  because  of  federal 
enroachment  upon  the  powers  of  the  states,  for  the 
purpose  of  indicating  the  extent  to  which  this  principle 
has  been  used  to  nullify  statutes  and  also  to  show  the 
importance  of  the  statutes  thus  destroyed.  It  remains 
now  to  summarize  as  far  as  possible  the  results  of  the 
above  analysis  and  ascertain  what  effect  the  enforcement 
of  the  federal  principle,  as  interpreted  by  the  court,  has 
had  on  national  legislation. 

It  is  worthy  of  note  that  the  court  did  not  overturn  a 
statute  because  of  this  principle  until  1869  and  thus  up 
till  after  the  Civil  War,  Congress  was  in  no  way  hampered 
by  judicial  nullifications  along  this  line.  Also,  as  might 


NULLIFIED  BY  THE  SUPREME  COURT 


99 


be  expected,  the  greater  number  of  cases  nullified  because 
of  conflict  with  this  principle  were  decided  in  the  decade 
1865-1875  when  the  statutes  passed  by  a  partisan  Con- 
gress as  a  result  of  the  War  had  had  time  to  work  through 
the  lower  tribunals  and  reach  the  Supreme  Court  for 
final  determination.  During  the  decade  1890-1900  there 
were  no  statutes  nullified  at  all  because  of  this  principle 
but  three  were  nullified  during  the  following  ten  years 
though  the  statute  in  one  case1  dates  back  to  1870  and 
hence  really  belongs  to  the  first  decade  mentioned.  Two 
of  the  cases  deal  with  an  interference  with  the  machinery 
of  government,  The  Collector  v.  Day2  and  United  States 
v.  The  Railroad  Co.,3  the  court  in  both  cases  refusing  to 
allow  the  national  government  to  interfere,  by  taxation, 
with  the  officers  or  public  income  of  the  state  or  of  its 
creatures.  As  it  is  elemental  that  the  power  to  tax  is 
the  power  to  destroy  the  court  was  clearly  within  a  safe 
principle  when  it  refused  to  allow  either4  government  to 
interfere  with  the  public  income  or  payments  of  the 
other.5  The  only  question  that  can  occur  here  then  is 

1  James  v.  Bowman,  190  U.  S.,  127,  supra,  p.  94. 

*  Supra,  p.  87.  3  Supra,  p.  87. 

*C/.  Dobbins  v.  The  Commissioners,  16  Peters,  435. 

3  Another  decision  regarding  the  relative  financial  powers  of  the  two 
governments  was  rendered  in  South  Carolina  v.  United  States,  199 
U.  S.,  437.  Under  what  was  known  as  the  Dispensary  Act,  the  state 
of  South  Carolina  had  direct  control  of  the  sale  of  intoxicating  liquor 
within  its  borders,  and  since  it  was  thus  a  state  matter  a  protest  was 
made  against  the  payment  of  the  federal  internal  revenue  duties.  In  its 
decision  the  court  pointed  out  the  effect  which  state  or  municipal  social- 
ism might  have  on  the  federal  income  if  the  tax  in  this  case  was  not 
valid,  for  by  a  state  monopoly  of  federal-taxed  articles  the  state  might 
wholly  avoid  any  national  taxes.  The  tax  in  this  case  was  upheld  be- 
cause by  going  into  the  liquor  business  the  state  laid  aside  its  '  '  sover- 
eign "  character  and  acted  as  an  ordinary  private  corporation.  "It  is 
reasonable  to  hold  that  while  the  former  [United  States]  may  do  noth- 


100  UNCONSTITUTIONAL  LEGISLATION 

one  of  application  of  the  principle.     In  Collector  v.  Day 
the  court  was  protecting  the  salary  of  a  state  officer  from 
direct  taxation  by  the  national  government  and  probably 
no  one  will  criticise  the   court   for  its   decision.1     The 
United  States  v.  The  Railroad  Co.,  was  simply  a  limited 
application  of  the  principle  to  a  class  of  cases  which  is  | 
not  likely  to  be  either  numerous  or  important.     Hence 
there  can  be  no  just  criticism  of  the  court  because  of  an 
undue  interference  with  Congressional  activities  in  this  case. 
The  court  gave  the  fifteenth  amendment  a  narrow  in- 
terpretation and  as  a  result  in  two  cases,  United  States 
v.   Reese2   and  James  v.  Bowman,3  statutes  supposedly 
based  on  this  amendment  were  declared  void.     This  may 
perhaps   be   unfortunate   but   the  unfortunate  part  was 
probably  not  the  decision  of  the  court  but  the  conditions 
prevailing  in  certain  sections  of  the  country.     However  I 
much  it  is  to  be  deplored  that  in  a  democratic  country 
there  is  a  politically  disqualified  class,  this  regret  does 
not  change  the  fact  that  in  the  decade,  1865—1875,  whe 
this  legislation  was  passed,  there  was  a  class  incapabl 
of  taking  its  place  politically  with  the  white  inhabitants 
Congress  was  apparently  obsessed  with  the  idea  that 
race  could  be  given  equality  by  mere  legislation,  regard 
less  of  the  qualifications  of  that  race,  or  regardless  of  publi 
sentiment,  and  attempted  to  secure  that  equality.     Th 
Supreme  Court,  while  not  checking  the  legislation  so  long 
as  it  remained  within  the  strict  letter  of  the  amendment 


ing  by  taxation  in  any  form  to  prevent  the  full  discharge  by  the  latte 
[the  state]  of  its  governmental  functions,  yet  whenever  a  state  engage 
in  a  business  which  is  of  a  private  nature  that  business  is  not  withdraw 
from  the  taxing  power  of  the  Nation." 

1  Two  justices,  however,  dissented  from  the  opinion  of  the  court  in 
this  case. 

2  Supra,  p.  88.  3  Supra,  p.  04. 


NULLIFIED  BY  THE  SUPREME  COURT 


101 


refused  any  broad  interpretation,  and  the  spirit  was  not, 
in  fact,  much  considered.  Since  the  attempt  by  the 
national  government  to  compel  political  equality  for  the 
colored  race  has  been  practically  abandoned,  and  the 
states  by  various  ingenious  methods,  allowed  to  control 
the  question  of  voting  to  a  very  large  extent,  these 
cases  are  now  largely  of  historical  rather  than  of  present 
or  future  interest.  Also,  considering  conditions,  probably 
few  or  none  will  now  censure  the  court  for  its  opinions 
in  these  cases.  Congress  attempted  what  later  events 
demonstrated  to  be  impossible  and  the  court  showed  no 
great  willingness  to  aid  it  in  its  attempt. 

In  regard  to  the  court's  interpretations  of  the  four-   v 
teenth  amendment  it  is  exceedingly  doubtful  if  so  kindly    \ 
a  criticism  can  be  made.     By  its  power  to  render  void 
an  act  of  Congress  the  court  has  greatly  increased  its 
own  jurisdiction  and  its  control  over  legislative  discre- 
tion.    The  cases   along   this  line   have,   however,    been 
already  commented  on.1 

The  statute  which  was  tested  and  found  wanting  in 
United  States  v.  DeWitt2  was  a  clear  exercise  of  the 
police  power  of  the  sort  which  the  states  ought  to  be 
capable  of  handling  themselves  since  it  involved  no 
questions  like  inter-state  commerce  which  are  at  times 
difficult  for  the  states  to  deal  with  satisfactorily  because 
of  United  States  constitutional  complications.  Likewise 
the  statute  considered  in  United  States  v.  Fox3  was  an 
ittempt  to  provide  for  the  punishment  of  an  ordinary 
•ime  which  the  states  can  attend  to  without  difficulty, 
and  the  act  nullified  in  the  Trade  Mark  Cases 4  is  one 
affecting  property  rights,  general  control  of  which  be- 
longs to  the  states. 


1  Supra,  p.  91  et  seq. 
8  Supra,  p.  89. 


*  Supra,  p.  86. 
4  Supra,  p.  90. 


102  UNCONSTITUTIONAL  LEGISLATION  [I96 

According  to  the  doctrine  held  from  the  beginning  of 
constitutional  government  in  this  country,  that  in  general 
the  states  have  a  monopoly  of  the  police  power  and  the 
authority  to  regulate  property  rights,  and  considering 
the  nature  of  the  statutes  involved  in  these  cases,  no 
criticism  can  be  made  of  the  court  because  of  the  use  of 
its  power  to  nullify  statutes  in  these  instances.  But  may 
the  same  be  said  of  the  decisions  in  the  Employers  Lia- 
bility Cases1  and  of  Keller  v.  United  States?2  Here 
Congress  was  attempting  to  deal  with  either  a  recent,  or 
a  new  view  of  an  ancient,  evil,  in  both  cases  important 
questions,  and  in  both  cases  Congress  met  with  a  partial 
check  because  the  Supreme  Court  declared  the  statutes 
unconstitutional  in  whole  or  in  part. 

From  the  above  it  is  seemingly  safe  to  conclude  that 
in  exercising  its  power  to  nullify  a  federal  statute  be- 
cause it  encroaches  upon  the  sphere  of  the  state,  as  the 
Supreme  Court  interprets  this,  the  court,  in  a  majority 
of  cases  has  used  its  power  in  such  a  manner  as  to  sub- 
ject it  to  no  great  amount  of  hostile  criticism.  Some  of 
the  statutes  dealt  with  in  cases  coming  under  this  head- 
ing, were  clear  infringements  upon  the  powers  of  the 
states  and  others  dealt  with  attempts  of  Congress  to 
settle  a  racial  question  by  means  more  than  doubtful  if 
judged  by  their  effectiveness.  But  on  the  other  hand  the 
court  has  used  its  great  power  to  produce  two  other  re- 
sults:  (i)  It  has  greatly  increased  its  own  authority  and 
jurisdiction  under  the  fourteenth  amendment;  (2)  it  has 
hampered  Congress  in  its  attempts  to  solve  two  pressing 
economic  and  social  problems.  The  first  has  already 
been  discussed.  The  second  will  be  taken  up  later. 

1  Supra,  p.  95.  *  Supra,  p.  97. 


197] 


NULLIFIED  BY  THE  SUPREME  COURT 


103 


Section  III. — Cases  in  which  statutes  were  nullified 
because  of  encroachments  upon  individual  civil  rights. 
4  WaH.,  333,  Ex  parte  Garland,  1866. 
6  Wall.,  1 60,  Reichart  v.  Felps,  1867. 
9  Wall.,  274,  The  Justices  v.  Murray,  1869. 

116  U.  S.,  616,  Boyd  v.  United  States,  1885. 

127  U.  S.,  540,  Callan  v.  Wilson,  1887. 

142  U.  S.,  547,  Counselman  v.  Hitchcock,  1891. 

148  U.  S.,  312,  Monongahela  Navigation  Co.  v.  United 
States,  1892. 

163  U.  S.,  228,  Wong  Wing  v.  United  States,  1895. 

174  U.  S.,    47,  Kirby  v.  United  States,  1899. 
1 197  U.  S.,  516,  Rassmussen  v.  United  States,  1905. 

208  U.  S.,  161,  Adair  v.  United  States,  1907. 

Although  the  courts  from  the  very  beginning  of  our 
government  have  declared  themselves  the  special  protec- 
tors of  those  fundamental  personal  rights  claimed  by  all 
Englishmen  and  constitutionally  guaranteed  to  Ameri- 
can citizens,  yet  it  was  not  until  1866  that  the  Supreme  \ 
Court  thought  that  Congress  had  trespassed  upon  any 
of  those  privileges,  and  then  the  transgression  was  the 
result  of  the  bitterness  and  turmoil  growing  out  of,  and 
following,  the  Civil  War. 

In  1865  Congress  provided  that  no  attorney  should  be 
allowed  to  practice  before  a  federal  court  unless  he  had 
first  taken  an  oath  that  he  had  in  no  way  voluntarily 
aided  the  Rebellion.  The  court  in  Ex  parte  Garland,2 
five  justices  agreeing,  held  that  this  action  was  im-\ 
proper,  since  it  conflicted  with  the  constitutional  clauses 
prohibiting  bills  of  attainder  and  ex-post-facto  laws. 
Also  since  in  the  case  at  the  bar,  the  individual  con- 

*In  this  case  individual  civil  rights  were  of  secondary  rather  than 
primary  importance. 

8 4  Wall.,  333- 


104  UNCONSTITUTIONAL  LEGISLATION  [I9g 

cerned  had  been  pardoned  by  the  President,  Congress 
could  not  inflict  any  punishment  which  might  not  be 
relieved  by  executive  clemency.1 

Also  during  the  stress  of  the  Civil  War,  Congress 
enacted  that  if  any  suit  was  prosecuted,  under  certain 
circumstances,  in  any  state  court  during  the  Rebellion 
against  any  officer  of  the  United  States,  it  would  be 
competent  for  either  party  to  remove  the  case  any  time 
within  six  months  after  the  rendition  of  judgment,  to 
the  Circuit  Court  of  the  United  States,  "and  the  said 
Circuit  Court  shall  thereupon  proceed  to  try  and  deter- 
mine the  facts  and  law  in  such  action,  in  the  same  manner 
as  if  the  same  had  been  there  originally  commenced,  the 
judgment  in  such  case  notwithstanding."2  It  was  alleged 
that  this  violated  the  second  part  of  the  seventh  amend- 
X  ment  providing  that  "No  fact  tried  by  a  jury  shall  be 
I  A/  otherwise  re-examined  in  any  court  of  the  United  States 
than  according  to  the  rules  of  the  common  law."  The 
court  held  in  the  Justices  v.  Murray,3  that  this  provision 
of  the  constitution  applied  to  cases  originating  in  the 
state  courts  and  then  carried  to  the  federal  courts  as 
well  as  to  actions  originating  in  the  latter,  and  to  re- 
examine  facts  once  determined  by  a  jury  in  the  manner 
contemplated  by  the  statute  was  not  the  rule  of  com- 


next  case  in  chronological  order  is  Reichart  v.  Felps,  6  Wall., 
160.  A  statute  of  Congress  passed  in  1812  was  reviewed  and  held  in- 
operative in  this  instance.  Congress  by  an  act  of  1788  had  provided  for 
the  confirmation  of  certain  land  claims  of  settlers  in  the  Northwest 
Territory.  Later  in  1812  a  Board  of  Commissioners  was  authorized  to 
revise  and  re-examine  the  confirmations  made  by  the  Governors  of  the 
Territory  under  the  act  of  1788.  Two  claimants  appeared  for  certain 
land  in  Illinois  —  one  claiming  under  the  act  of  1788  and  the  other  under 
the  act  of  1812.  The  court  in  deciding  the  case  stated  that  Congress 
had  "no  power  to  organize  a  board  of  revision  to  nullify  titles  con- 
firmed many  years  before  by  the  authorized  agents  of  the  government." 
2  16  Statutes  at  Large,  757.  39  Wall.,  274. 


199] 


NULLIFIED  BY  THE  SUPREME  COURT 


105 


mon  law.     Hence  the  statute  was  null  and  void  because 
of  constitutional  conflict. 

The  next  case  in  which  the  court  felt  bound  to  annul 
an  act  of  Congress  because  it  violated  the  Bill  of  Rights 
was  Boyd  v.  United  States.1  Congress  had  passed  a 
rather  drastic  act2  to  aid  in  the  collection  of  customs 
duties,  empowering  a  court,  in  case  the  defendant  im- 
porter had  any  paper,  record,  etc.  which  might  be 
deemed  of  service  to  the  government  in  the  prosecution 
of  a  suit,  to  issue  a  notice  to  the  defendant  to  produce 
such  paper  or  record.  If  the  defendant  failed  to  comply 
with  the  order,  the  allegation  made  by  the  govern- 
ment, and  which  it  expected  to  prove  by  the  paper  or 
record,  should  be  taken  as  confessed.  In  words,  criminal 
actions  were  specifically  excluded  from  the  operations 
of  this  act,  and  also  no  seizure  or  search  was  directly 
authorized.  The  court,  however,  claiming  to  look  to 
the  substance  rather  than  the  form  of  the  statute,  held  that 
such  a  forced  production  of  a  man's  private  papers  was 
equivalent  to  the  search  and  seizure  prohibited  by  the 
fourth  amendment.  It  was  also  maintained  that  while  in 
the  case  at  trial  the  proceedings  were  in  form  civil  they 
were  in  fact  criminal,  and  consequently  the  act  violated 
that  part  of  the  fifth  amendment  which  prohibits  any  one 
being  compelled  to  be  a  witness  against  himself  in  a 
criminal  case.  In  this  case  while  the  court  upheld  the 
civil  rights  guaranteed  by  the  constitution  and  its  amend- 
ments, yet  the  act  dealt  only  with  the  method  used  by 
the  government  in  collecting  its  revenue.  Because  of 
the  narrow  application  of  both  the  statute  and  the  deci- 
sion,3 no  great  significance  can  be  attached  to  either. 


1 116  U.  S.,  616.  *  18  Statutes  at  Large,  186. 

'Some  of  the  statements  in  this  case  are  of  a  broad,  general  nature 


106  UNCONSTITUTIONAL  LEGISLATION  [2QO 

In  Callan  v.  Wilson,1  there  were  two  constitutional 
questions  before  the  court  for  determination.  One  was 
whether  the  guarantees  of  personal  rights  and  liberty 
apply  to  the  District  of  Columbia  and  limit  Congress  in 
its  legislation  for  the  District.  The  court  held  the  con- 
stitution did  apply.  The  other  point  of  general  import 
was  the  determination  of  what  is  necessary  in  order  to 
meet  the  constitutional  requirement  for  trial  by  jury  in 
criminal  cases.  Congress  had  provided  for  a  summary 
trial  in  the  District  of  Columbia  Police  Court  in  certain 
criminal  cases,  allowing  an  appeal  to  the  court  above 
provided  the  party  applying  for  the  appeal  should  give 
bond  to  appear  and  prosecute  the  case  or  that  failing  to 
give  bond,  he  should  remain  in  jail  pending  the  decision 
in  the  appellate  court.  The  court  held  that  this  pro- 
cedure did  not  meet  the  requirements  of  the  constitu- 
tion ;  that  with  the  exception  of  certain  minor  offenses 
which  had  always  been  tried  with  no  jury  at  all,  the  con- 
stitution required  a  jury  trial  in  the  court  of  first  instance, 
thus  taking  a  broader  view  of  the  constitutional  guar- 
antees than  Congress  had  taken  and  fulfilling  the  judicial 
claim  that  the  courts  are  the  best  protectors  of  individual 
rights.  Because  of  the  fact  that  Congress  has  entire 
legislative  control  over  very  limited  territory  and  because 
of  the  fact  that  it  would  probably  never  attempt  any  leg- 
islation similar  to  this  for  the  guidance  of  the  federal 
judiciary,  due  to  the  nature  of  the  circumstances,  this 
case,  like  the  preceding,  has  no  very  wide  direct  signifi- 

and  not  specifically  limited  to  the  point  at  issue.  Since,  however,  it  is 
a  case  in  which  the  United  States  government  appears  because  of  its 
fiscal  operations  there  may  be  doubt  whether  this  language  is  really  as 
broad  as  it  appears  or  whether  it  must  be  limited  in  application  to  other 
cases  similar  in  character  to  this  one. 
'127  U.  S.,  540. 


201  ]  NULLIFIED  BY  THE  SUPREME  COURT 

cance,  though  its  indirect  influence  on  state  legislation 
and  judicial  decisions  might  be  considerable. 

In  Counselman  v.  Hitchcock,1  the  court  again  passed 
upon  a  statute  originally  enacted  in  1868,  but  re-enacted 
and  included  in  the  Interstate  Commerce  Act  of  1887. 
The  contest  before  the  court  grew  out  of  an  attempt  to 
apply  the  statute  in  a  railroad  rebate  case.  Congress 
had  provided  that  the  courts  could  compel  the  officers/  \xix- 
and  agents  of  carrier  companies  to  appear  and  testify  in 
certain  cases,  but  that  no  evidence  given  by  a  party  or  a 
witness  in  a  judicial  proceeding  should  be  used  against 
that  party  or  witness  in  any  criminal  proceedings  in  any 
court  of  the  United  States.  In  a  grand  jury  investiga- 
tion the  government  endeavored  to  obtain  information 
from  the  plaintiff  in  the  above  case  regarding  alleged 
rebating  in  freight  rates.  The  plaintiff  refused  to  give  \ 
the  information  asked  for,  claiming  that  notwithstanding 
the  provision  of  the  statute  the  fifth  amendment  still 
protected  him.  The  court  decided  that  the  statute  did 
not  give  the  immunity  required  by  the  amendment  and 
hence  could  not  be  enforced.  While  probably  quite 
within  the  letter  and  spirit  of  the  constitution  this  de- 
cision has  embarrassed  the  government  somewhat  in 
dealing  with  corporations  since,  as  it  is  obviously  only 
through  their  officers  that  such  organizations  can  be 
reached,  and  if  these  officers  may  not  be  compelled  to 
testify  regarding  the  doings  of  the  corporations  because 
of  the  possibility  of  personal  prosecution,  the  difficulty 
of  the  government  in  controlling  corporations  is  corre- 
spondingly increased.  Thus,  while  the  court  was  os- 
tensibly upholding  individual  rights,  corporations  really 

1  142  U.  S.,  547. 


I08  UNCONSTITUTIONAL  LEGISLATION  [2O2 

received  the  benefit  of  the  court's  solicitude  for  these 
personal  privileges  in  this  case.1 

Because  of  the  clause  in  the  Bill  of  Rights,  "  Nor  shall 
private  property  be  taken  for  public  use  without  just 
compensation,"  the  court  again  protected  property  in- 
terests from  Congressional  aggression  in  Monongahela 
Navigation  Co.  v.  United  States.2  The  state  of  Penn- 
sylvania had  chartered  the  litigant  company  in  this  case 
and  authorized  it  to  construct  improvements  for  the 
purpose  of  aiding  commerce  on  a  navigable  river.  Later, 
in  1881,  Congress  made  an  appropriation  for  the  same 
purpose,  the  appropriation  to  be  available  only  when  the 
company  had  made  certain  additional  improvements. 
The  company  met  the  requirements  and  in  1887  a  second 
federal  act  was  passed  providing  a  certain  amount 
for  the  purchase  of  these  company  improvements.  The 
act  also  provided  that,  failing  of  purchase,  the  Secretary 
of  War  was  to  proceed  to  the  condemnation  of  the 
property,  but,  "  In  estimating  the  sum  to  be  paid  by  the 
United  States,  the  franchise  of  said  corporation  to  col- 
lect tolls  shall  not  be  considered  or  estimated."  In  the 
condemnation  proceedings  which  succeeded,  the  company 
offered  to  prove  among  other  things  that  twelve  per 

!This  case  was  decided  in  January,  1892.  In  February,  1893,  Con- 
gress, while  still  retaining  the  compulsory  testifying  clauses,  so  amended 
this  section  of  the  statute  as  to  prohibit  prosecution  "for  or  on  account 
of  any  transaction,  matter  or  thing,  concerning  which  he  may  testify,  or 
produce  evidence,  .  .  ."  27  Statutes  at  Large,  443.  In  Brown  v. 
Walker,  161  U.  S.,  591,  this  statute  was  held,  four  justices  dissenting, 
to  afford  sufficient  immunity,  and  a  witness  in  these  cases  could  not  re- 
fuse to  testify  because  of  the  fifth  amendment.  In  a  later  case,  Wilson 
v.  United  States,  221  U.  S.,  361,  it  was  held  that  an  officer  of  a  corpo- 
ration having  possession  of  the  books  of  the  corporation  must  produce 
such  books  on  proper  judicial  demand  even  though  they  might  tend  to 
incriminate  the  officer. 

«I48U.  S.,  312. 


203] 


NULLIFIED  BY  THE  SUPREME  COURT 


109 


cent  dividends  had  been  paid  on  the  stock  and  that  the 
latter  was  worth  about  double  the  par  value,  but  the 
lower  court  following  the  statute  refused  to  admit  any 
evidence  of  this  character.  On  appeal,  the  Supreme 
Court  stated  that, 

Obviously,  this  question,  as  all  others  which  run  along:  the 
line  of  the  extent  of  the  protection  the  individual  has  under 
the  Constitution  against  the  demands  of  the  government,  is 
of  importance  ;  for  in  any  society  the  fulness  and  sufficiency 
of  the  securities  which  surround  the  individual  in  the  use  and 
enjoyment  of  his  property  constitute  one  of  the  most  certain 
tests  of  the  character  and  value  of  the  government. 

The  court  then  holds  that  the  deprivation  of  the  right 
to  collect  tolls,  given  to  a  company  by  a  government,  is 
as  much  a  taking  of  property  in  the  constitutional  sense 
as  is  the  confiscation  of  more  tangible  possessions  and 

The  question  of  just  compensation  is  not  determined  by  the 
value  to  the  government  which  takes,  but  the  value  to  the  indi- 
vidual from  whom  the  property  is  taken ;  and  when  by  the 
taking  of  the  tangible  property  the  owner  is  actually  deprived 
of  the  franchise  to  collect  tolls,  just  compensation  requires 
payment,  not  merely  of  the  value  of  the  tangible  property 
itself,  but  also  of  that  of  the  franchise  of  which  he  is  deprived. 

Hence  the  particular  clause  forbidding  compensation  for 
the  franchise,  which  Congress  had  carefully  inserted,  was 
nullified.  In  this  case  the  court  proved  itself  a  stouter 
defender  of  property  rights  than  Congress  but  in  so 
doing  it  made  no  mention  of  the  fact  that  ''just"  com- 
pensation includes  justice  both  to  the  individual  and  to 
society,  and  in  this  instance  Congress  had  not  attempted 
to  take  away  without  compensation  any  value  which  the 
company  had  given  its  property  but  only  that  contrib- 


HO  UNCONSTITUTIONAL  LEGISLATION  [204 

uted  by  the  public.  The  statute  would  have  returned 
this  value  to  the  community  which  created  it  without 
cost  to  the  latter  but  the  court  refused  to  allow  such 
restitution.1 

The  federal  government  had  passed  considerable  legis- 
lation in  regard  to  the  Chinese,  all  of  it  hostile  and  some 
of  it  drastic.  The  court  had  allowed  Congress  full  dis- 
cretion in  prohibiting  the  immigration  of  Chinese  and 
providing  for  the  deportation  of  those  unlawfully  within 
the  country,  as  well  as  submitting  the  enforcement  of  such 
laws  exclusively  to  the  executive  officers  without  judicial 
review.2  When,  however,  in  I8Q23  Congress  provided 
that  any  Chinese  person  who  was  adjudged  unlawfully 
within  the  United  States  by  any  justice,  judge  or  com- 
missioner of  the  United  States  should  be  imprisoned, 
prior  to  deportation,  for  a  period  not  to  exceed  one  year, 
the  court  called  a  halt.  In  Wong  Wing  v.  United 
States4  it  was  held  that  this  section  of  the  statute  was 
contrary  to  the  jury-trial  provisions  of  the  fifth  and  sixth 
amendments.  Certainly  the  court  in  these  Chinese  im- 
migration cases  allowed  Congress  all  the  liberty  that 
could  reasonably  be  claimed  and  only  checked  it  when 
both  the  letter  and  the  spirit  of  the  constitution  were 
clearly  violated. 

In  Kirby  v.  United  States5  the  court  nullified  part  of 
a  federal  act6  affecting  evidence  in  cases  involving  the 

1  As  to  whether  the  franchise  should  be  included  in  the  property  on 
which  a  fair  return  must  be  allowed  in  fixing  rates  for  public  utilities, 
see  e.g.  Knoxville  v.  Water  Co.,  212 U.  S.,  i,  and  Willcox  v.  Gas  Co., 
212  U.  S.,  19. 

*Cf.  Chae  Chan  Ping  v.  United  States,  130  U.  S.,  581;  Fong  Ting  v. 
United  States,  149  U.  S.,  698;  Lem  Moon  Sing  v.  United  States,  158 
U.  S.,  538;  see  also  United  States  v.  Ju  Toy,  198  U.  S.,  253. 

•27  Statutes  at  Large,  25.  *  163  U.  S.,  228. 

5 174  U.  S.,  47.  M8  Statutes  at  Large,  479. 


205] 


NULLIFIED  BY  THE  SUPREME  COURT 


III 


misappropriation  of  United  States  government  property 
or  money.  As  the  court  construed  this  act  it  was  in 
conflict  with  that  clause  of  the  sixth  amendment  which 
requires  an  accused  in  criminal  prosecutions  to  be  con- 
fronted with  the  witnesses  against  him.  The  statute  in 
question  dealt  only  with  the  attempt  of  the  government 
to  protect  its  own  property  and,  at  least  so  far  as  the 
particular  points  at  issue  are  concerned,  the  case  has  but 
a  narrow  application  without  general  importance.1 

After  the  great  railroad  strikes  of  1894,  Congress  set 
about  devising  means  to  lessen  or  prevent  such  catas- 
trophes in  the  future,  and  embodied  its  conclusions  in 
an  act  passed  June,  1898.  The  act  applied  only  to  car- 
riers engaged  in  interstate  or  foreign  commerce  with 
certain  named  exceptions,  and  provided  for  settlement, 
by  means  of  arbitration,  of  controversies  concerning 
wages,  hours  of  labor,  etc.,  and  labor  unions  were  to  be 
recognized  in  forming  the  boards  of  conciliation.  The 
act  further  provided  that  no  employer  nor  any  of  his 
officers  or  agents  should  attempt  to  prevent  employees 
from  joining  or  remaining  members  of  a  labor  union. 
nor  "shall  threaten  any  employee  with  loss  of  employ- 
ment, or  shall  unjustly  discriminate  against  any  employee 
because  of  his  membership  in  such  a  labor  corporation, 
association,  or  organization."2  This  latter  section  of 
the  statute  was  considered  in  Adair  v.  United  States,3 
the  specific  question  as  the  court  defined  it  being : 

lln  Rassmussen  v.  United  States,  197  'U.  S.,  516,  it  was  held  that  a 
statute  providing  for  a  jury  of  six  men  for  the  trial  of  certain  offenses  in 
Alaska,  was  invalid.  The  question  really  at  issue  in  this  case  was,  how- 
ever, whether  the  constitution  applied  to  Alaska,  and  limited  Congress 
in  its  territorial  legislation.  The  court  held  that  the  Constitution  did 
apply  and  consequently  only  the  common-law  jury  of  twelve  men  could 
be  utilized — a  fact  conceded  by  the  government  if  the  constitutional 
limitations  extended  to  the  territory. 

'30  Statutes  at  Large,  424.  '208  U.  S.,  161. 


; 


\ 


H2  UNCONSTITUTIONAL  LEGISLATION  [206 

May  Congress  make  it  a  criminal  offense  against  the  United 
States— as  by  the  tenth  section  of  the  act  of  1898  it  does— for 
an  agent  or  officer  of  an  interstate  carrier,  having  full  author- 
ity in  the  premises  from  the  carrier,  to  discharge  an  employee 
from  service  simply  because  of  his  membership  in  a  labor 
organization? 

It  was  alleged  that  Congress  derived  constitutional 
power  from  the  interstate  commerce  clause  to  pass  such 
an  act,  but  the  court  held, 

that  there  is  no  such  connection  between  interstate  commerce 
and  membership  in  a  labor  organization  as  to  authorize  Con- 
gress to  make  it  a  crime  against  the  United  States  for  an  agent 
of  an  interstate  carrier  to  discharge  an  employee  because  of 
such  membership  on  his  part. 

Not  only  did  the  act  have  the  negative  defect  of  being 
unauthorized  by  the  constitution,  but  it  was  positively 
bad  because  it  conflicted  with  a  specific  provision  of  the 
constitution — the  due  process  clause  of  the  fifth  amend- 
ment. The  court  held  that  an  interference  with  a  man's 
right  to  sell  his  labor  or  an  employer's  right  to  buy  that 
labor,  unless  the  interference  was  based  on  recognized 
police  power,  was  in  conflict  with  the  "liberty"  guar- 
anteed by  the  due  process  clause.  In  this  instance  a 
part  of  the  act  was  declared  void,  though  as  Mr.  Justice 
Holmes  says  in  his  dissenting  opinion,  it  was  "  a  very 
limited  interference  with  freedom  of  contract,  no  more." 
To  quote  the  court : 

In  our  opinion  that  section,  in  the  particular  mentioned,  is  an 
invasion  of  the  personal  liberty  as  well  as  of  the  right  of  prop- 
erty, guaranteed  by  that  [fifth]  amendment.  Such  liberty  and 
right  embraces  the  right  to  make  contracts  for  the  purchase 
of  the  labor  of  others  and  equally  the  right  to  make  contracts 
for  the  sale  of  one's  own  labor ;  each  right,  however,  being 


207]  NULLIFIED  BY  THE  SUPREME  COURT 

subject  to  the  fundamental  condition  that  no  contract,  what- 
ever its  subject  matter,  can  be  sustained  which  the  law,  upon 
reasonable  grounds,  forbids  as  inconsistent  with  the  public 
interests  or  hurtful  to  the  public  order  or  as  detrimental  to  the 
common  good.  ...  It  is  sufficient  in  this  case  to  say  that  as 
agent  of  the  railroad  company  and  as  such  responsible  for  the 
conduct  of  the  business  of  one  of  its  departments,  it  was  the 
defendant  Adair's  right — and  that  right  inhered  in  his  personal 
liberty,  and  was  also  a  right  of  property — to  serve  his  em- 
ployer as  best  he  could,  so  long  as  he  did  nothing  that  was 
reasonably  forbidden  by  law  as  injurious  to  the  public  inter- 
ests. It  was  the  right  of  the  defendant  to  prescribe  the  terms 
upon  which  the  services  of  Coppage1  would  be  accepted 
and  it  was  the  right  of  Coppage  to  become  or  not,  as  he 
chose,  an  employee  of  the  railroad  company  upon  the  terms 
offered  to  him. 

This  is  the  second  time  that  the  due  process  clause 
has  been  used  as  a  reason  for  nullifying  an  act  of  Con- 
gress. In  the  previous  case  of  Hepburn  v.  Griswold,3  > 
this  clause  was  only  mentioned  and  not  elaborated  to! 
any  great  extent,  but  in  the  present  case  it  is  one  of  two 
reasons  for  annulling  an  act  of  Congress.  Perhaps  it  is 
only  fair  to  raise  the  question  whether  the  court  in  the 
future  will  develop  the  due  process  clause  as  applied  to 
the  federal  government,  as  due  process  shows  itself  cap- 
able of  development,  and  by  this  means  control  the  dis- 
cretion of  Congress  to  the  extent  that  the  discretion  of 
the  state  legislatures  is  now  being  controlled  by  virtue 
of  the  similar  clause  in  the  fourteenth  amendment.3 

1  Coppage  was  the  employee  discharged  in  alleged  violation  of  the  act. 

''8  Wall,  603,  infra,  p.  118. 

3  One  of  the  justices  of  the  Supreme  Court  thus  expresses  himself  re- 
garding this  decision:  "  It  also  seems  to  me  to  be  an  oversight  of  the 
proportions  of  things  to  contend  that,  in  order  to  encourage  a  policy  of 
arbitration  between  carriers  and  their  employees  which  may  prevent  a  dis- 


H4  UNCONSTITUTIONAL  LEGISLATION  [208 

From  the  above  analysis  it  will  be  seen  that  Congress 
has  shown  no  great  tendency  to  violate  any  of  the  civil 
rights  guaranteed  by  the  constitution,  and  in  no  great 
number  of  cases  has  the  Supreme  Court  had  to  interfere 
and  check  Congressional  activity  because  of  the  Bill  of 
Rights  in  the  constitution;  nor,  judging  again  by  the 
quantity  of  cases,  has  the  court  been  unduly  active  in  the 
exercise  of  its  power  to  nullify  statutes  because  of  con- 
flict with  the  constitutional  civil  guarantees.  The  court 
has  used  its  powers  to  soften  the  drastic  legislation  ex- 
cited by  bitter  partisan  feeling, — popular  agitation  or 
resentment  against  certain  classes.  In  ex  parte  Gar- 
land1 the  court  refused  to  allow  Congress  to  impose 
certain  humiliations  and  oppressions  upon  a  defeated 
people.  Likewise  in  Wong  Wing  v.  United  States,2 
while  the  court  had  been  very  lenient,  it  did  refuse  to 
tolerate  gross  mistreatment  of  a  disliked  race. 

astrous  interruption  of  commerce,  the  derangement  of  business,  and 
even  greater  evils  to  the  public  welfare,  Congress  cannot  restrain  the 
discharge  of  an  employee  and  yet  can,  to  enforce  a  policy  of  unre- 
strained competition  between  railroads,  prohibit  reasonable  agreements 
between  them  as  to  the  rates  at  which  merchandise  shall  be  carried. 
And  mark  the  contrast  of  what  is  prohibited.  In  one  case  the  restraint, 
it  may  be,  of  a  whim— certainly  of  nothing  that  affects  the  ability  of  an 
employee  to  perform  his  duties;  nothing,  therefore,  which  is  of  any 
material  interest  to  the  carrier;  in  the  other  case  a  restraint  of  a  care- 
fully considered  policy  which  had  as  its  motive  great  material  interests 
and  benefits  to  the  railroads,  and,  in  the  opinion  of  many,  to  the  public. 
May  such  action  be  restricted,  must  it  give  way  to  the  public  welfare, 
while  the  other,  moved,  it  may  be,  by  prejudice  and  antagonism,  is  in- 
trenched impregnably  in  the  Fifth  Amendment  of  the  Constitution 
against  regulation  in  the  public  interest."  Justice  McKenna,  dissent- 
ing, Adair  v.  United  States,  208  U.  S.,  189. 

Possibly  another  justice  came  nearer  the  truth  in  the  matter  as  pop- 
ularly understood  when  he  said:  "I  confess  that  I  think  the  right  to 
make  contracts  at  will  that  has  been  derived  from  the  word  liberty  in 
the  amendments  has  been  stretched  to  its  extreme  by  the  decisions." 
Justice  Holmes,  dissenting,  ibid.,  208  U.  S.,  191. 

1  Supra,  p.  103.  *  Supra,  p.  no. 


209] 


NULLIFIED  BY  THE  SUPREME  COURT 


The  Justices  v.  Murray,1  though  decided  on  a  provi- 
sion in  the  constitutional  Bill  of  Rights,  really  has  a 
political  aspect,  as  the  most  important  question  involved 
was  not  that  of  protection  to  an  individual,  but  that  of 
hampering  the  administration  of  the  national  government 
in  hostile  states  or  sections  by  interfering  with  its  offi- 
cers. The  statute  involved  in  this  case  provided  that  an 
action  against  a  United  States  officer  in  a  state  court 
might  be  taken  to  a  federal  tribunal  and  opened  anew 
after  the  rendition  of  judgment  in  the  trial  court.  Since, 
however,  according  to  the  decision  in  Tennessee  v. 
Davis,2  Congress  has  the  power  to  provide  that  cases 
of  this  character  may  be  removed  from  a  state  to  a  fed- 
eral court  before  judgment  is  rendered,  the  point  in- 
volved in  The  Justices  v.  Murray  is  not  as  vital  as  might 
appear;  if  for  any  reason  injustice  is  feared  in  the  trial 
of  a  national  officer  before  the  state  tribunals,  this  injus- 
tice may  be  avoided  by  removing  the  case  at  once  to  the 
federal  courts. 

Other  of  the  cases  included  in  this  section,  Boyd  v. 
United  States3  and  Kirby  v.  United  States,4  are  con- 
cerned only  with  a  particular  class  of  individuals,  and 
interest  the  public  at  large  but  little.  The  case  of  Coun- 
selman  v.  Hitchcock,5  however,  has  a  present  and  gen- 
eral interest,  but  by  making  the  immunity  somewhat 
wider  Congress  was  able  to  accomplish  the  purpose 
intended  by  the  act  nullified  in  this  case. 

In  the  Monongahela  Navigation  Co.  v.  United  States6 
the  court  emphasized  individual  property  rights  and  lost 
sight  of  the  interests  which  the  community  may  have 


1  Supra,  p.  104. 
4  Supra,  p.  i TO. 
•  Supra,  p.  108. 


2 100  U.  S.,  257.  *  Supra,  p.  105. 

5 Supra,  p.  107. 


n6  UNCONSTITUTIONAL  LEGISLATION  [2io 

had  in  the  question  at  issue.  Since,  however,  the  de- 
cision was  conclusive  only  on  one  point,  namely,  that  the 
value  of  the  franchise  belonging  to  the  company  must  be 
considered  in  case  the  government  took  possession  of 
the  property,  and  as  it  did  not  indicate  either  the  value 
of  that  franchise  or  any  specific  method  of  determining 
the  value,  but  left  both  open  questions  to  be  decided  by 
the  court  below,  private  franchise  rights  were  not  neces- 
sarily so  strongly  intrenched  by  this  case  as  to  preclude 
entirely  the  interests  of  the  community.  But  in  the 
most  recent  instance  in  which  a  federal  statute  was 
nullified  because  of  conflict  v/ith  the  constitutional  Bill 
of  Rights,  Arfajr  21  TTnjteH  States,1  the  court  while 
ostensibly  upholding  these  individual  privileges,  made  a 
decision  which  is  probably  diametrically  opposed  to  the 
spirit  of  the  freedom  supposed  to  be  guaranteed  by  the 
first  ten  amendments,  and  the  supporting  argument  is 
based  on  an  ancient  theory  of  individual  rights  rather 
than  upon  any  consideration  of  actual  conditions. 

The  court,  because  of  its  power  to  nullify  a  federa 
statute  in  conflict  with  the  civil  rights  clauses  of  the 
constitution,  has  prevented  Congress  in  two  instances 
from  going  to  extremes  in  hostile  class  legislation  anc 
it  will  probably  now  be  commended  for  both  of  these 
opinions.  Whether  it  was  commended  for  the  ex  parte 
Garland  decision  forty-five  years  ago  when  it  was  rend- 
ered is,  of  course,  quite  a  different  question.  At  least 
four3  of  the  decisions  in  this  section  are  of  general  anc 
present  importance  and  others  are  of  present  but  minor 
value.  On  the  whole,  then,  it  is  probably  safe  to  say 

1  Supra,  p.  in. 

1  Ex  parte  Garland  and  Wong  Wing  v .  United  States. 
'The  Justices  v.  Murray;  Counselman  v.   Hitchcock;  Monongahela 
Navigation  Co.  v.  United  States;  Adair  v.  United  States. 


2i  i  ] 


NULLIFIED  BY  THE  SUPREME  COURT 


that  the  court  has  made  no  great  use  of  its  power  to 
nullify  statutes  in  this  particular  class  of  cases  and,  ex- 
cepting Adair  v.  United  States,  while  subjecting  itself  to 
no  great  amount  of  adverse  criticism,  can  be  commended 
for  most  of  its  decisions.  In  the  Adair  case,  however, 
the  court  has  probably,  wittingly  or  unwittingly,  failed 
really  to  protect  private  rights  and  liberty. 

Section  IV.  —  Ultra  vires  acts  of  Congress  not  included 
in  the  above  three  classifications  : 

19  How.,  393,  Scott  v.  Sandford,  1856. 
8  Wall.,  603,   Hepburn  v.  Griswold,  1869. 

157  U.  S.,  429,  Pollock  v.  Farmers    Loan    &  Trust 

Co.,  1894. 

158  U.  S.,  601,  Pollock    v.    Farmers    Loan  &  Trust 

Co.,  1894. 

181   U.  S.,  283,  Fairbank  v.  United  States,  1903. 
197  U.  S.,  516,  Rassmussen  v.  United  States,  1905. 

After  the  court  had,  in  Marbury  v.  Madison,  1803, 
successfully  defended  its  own  jurisdiction  and  independ- 
ence and  vindicated  its  claimed  power  to  annul  an  act  of 
Congress,  if  it  deemed  there  was  a  conflict  between  such 
act  and  the  constitution,  it  did  not  again  exercise  this 
power  for  over  half  a  century.  The  court's  next  use  of 
this  right  after  the  above-mentioned  case  was  Scott  v. 
Sandford,1  in  1856,  when  it  attempted  to  settle  a  funda- 
mental political  and  social  problem  which  up  to  that  time 
had  baffled  the  best  efforts  of  both  the  executive  and 
legislative  departments,  as  well  as  the  thought  and  efforts 
of  statesmen  and  reformers  outside  of  these  departments. 
The  decision  has  been  judicially  described  as  follows  : 


19  How.,  393. 


Hg  UNCONSTITUTIONAL  LEGISLATION  [212 

It  was  said  of  the  case  of  Dred  Scott  v.  Sanford,  that  this 
court,  there  overruled  the  action  of  two  generations,  virtually 
inserted  a  new  clause  in  the  Constitution,  changed  its  char- 
acter, and  made  a  new  departure  in  the  workings  of  the 
federal  government.1 

The  question  thus  attempted  to  be  settled  was  soon 
afterward  really  solved  by  the  more  drastic  method  of 
the  sword  and  consequently  the  decision  had  little  or  no 
practical  legal  force.  It  did  succeed,  however,  in  draw- 
ing down  upon  the  court  grave  and  severe  censure,  and 
illustrates,  at  least  in  one  great  crisis  of  our  national  life, 
how  inadequate  the  court  was,  how  little  comprehension 
it  had  of  the  limits  of  its  own  powers  or  of  the  real  im- 
portance of  the  question  it  thus  attempted  to  solve  and 
its  small  knowledge  of  the  temper  of  the  public. 

Shortly  after  the  close  of  the  Civil  War  the  court  was 
again  called  upon  to  pass  judgment  on  what  had  become 
an  important  political  question.  Laboring  under  the 
financial  difficulties  of  the  War,  Congress  had  authorized 
the  issue  of  treasury  notes  and  enacted  that  the  notes 
should  be  legal  tender  for  all  debts  with  certain  named 
^exceptions.  In  Hepburn  v.  Griswold 2  the  question 
presented  was  whether  Congress  had  power  to  make 
such  notes  a  legal  tender  for  debts  which,  when  con- 
tracted, were  payable  in  gold  and  silver.  The  court,  in  a 
long  opinion,  decided  that  Congress  did  not  have  this 
authority  principally  because  it  was  not  an  appropriate 
and  plainly  adapted  means  for  carrying  out  any  of  the 
enumerated  powers  of  that  body ;  because  it  was  con- 
trary to  the  spirit  of  the  constitution  inasmuch  as  it  was 
a  law  impairing  the  obligation  of  contracts ;  and  finally 

1  Justice  Harlan  dissenting,  Civil  Rights  Cases,  109  U.  S.,  57. 
'8  Wall.,  603. 


213] 


NULLIFIED  BY  THE  SUPREME  COURT 


119 


because  it  was  contrary  to  the  due  process  clause  of  the 
fifth  amendment.  This  is  the  first  time  that  this  clause 
had  been  mentioned  as  a  basis  for  declaring  a  federal 
act  unconstitutional  and  was  not  elaborated  to  any  great 
extent.1 

In  Pollock  v.  Farmers  Loan  and  Trust  Company2  the 
court  again  gave  judgment  on  the  financial  powers  of 
Congress  and  again  limited  federal  activities  in  this  line. 
In  this  case  the  court,  while  not  prohibiting  a  tax  on  all 

1  In  this  case  the  court  again  took  the  wrong  side  of  a  political  ques- 
tion. The  decision  was  popularly  opposed  and  both  Congress  and  the 
public  hesitated  to  accept  it  as  a  final  determination  of  the  question,  the 
prestige  of  the  court  failing  to  give  its  conclusions  the  moral  finality 
which  is  necessary  if  its  rulings  are  to  be  accepted  without  protest  by 
the  public.  The  determination  of  the  court  in  this  case  was,  by  confer- 
ence among  the  justices,  made  in  November,  1869,  and  the  opinion 
given  out  in  February,  1870.  At  the  time  of  the  conference  there  were 
eight  justices  on  the  bench  and  Justice  Grier,  after  some  wavering,  had 
agreed  that  the  Legal  Tender  act  was  but  partially  valid,  but  before  the 
opinion  was  made  public,  this  Justice,  now  aged  and  infirm,  at  the  re- 
quest of  his  colleagues  on  the  bench,  had  resigned.  Hence  the  decision 
was  really  a  decision  by  five,  three  dissenting,  though  when  the  opinion 
was  actually  read,  but  four  of  the  concurring  justices  were  on  the  bench. 
(See  Rhodes,  History  of  the  United  States,  vol.  vi,  p.  258  et  seq.  ;  also 
Justice  Joseph  P.  Bradley,  Miscellaneous  Writings,  p.  73.)  The  two 
vacancies  after  Justice  Grier's  resignation  were  filled  in  such  a  way  that 
the  minority  of  three  became  a  majority  of  five.  In  May,  1871,  in  the 
Legal  Tender  Cases,  n  Wall.,  682,  Hepburn  v.  Griswold  was  largely 
overturned,  although  opinions  in  the  case  did  not  appear  until  January, 
1872  (12  Wall.,  457).  In  this  case,  as  in  the  Dred  Scott  case,  a  means 
was  found  of  changing  an  unpopular  decision  of  the  Supreme  Court  on 
a  political  question— in  this  instance  by  a  change  in  the  personnel  of  the 
court. 

In  Juillard  v.  Greenman,  no  U.  S.,  421,  a  still  more  sweeping  deci- 
sion was  rendered  on  this  point.  In  the  Legal  Tender  Cases  the  power 
of  Congress  was  upheld  largely  as  a  war  power,  but  in  Juillard  v.  Green- 
man the  same  authority  was  conceded  to  vest  in  Congress,  though  in  a 
time  of  entire  peace,  thus  completely  overturning  anything  that  may 
have  been  left  of  the  decision  in  Hepburn  v.  Griswold. 

'157  U.  S.,  429,  and  a  rehearing,  158  U.  S.,  601. 


120  UNCONSTITUTIONAL  LEGISLATION  [214 

incomes,  did  make  it  impossible  to  levy  a  tax  on  large 
classes  of  them  and  caused  a  federal  tax  of  this  nature 
to  be  economically  undesirable.  This  decision  was  made, 
too,  in  face  of  the  fact  that  the  direct  taxes  which  Con- 
gress could  only  levy  by  apportionment  had  been  confined 
to  narrow  limits  in  various  cases ; '  that  the  United 
States  had  had  an  income  tax  for  several  years  during 
and  immediately  following  the  Civil  War ;  and  also  in 
face  of  .the  fact  that  the  court  in  passing  upon  a  similar 
statute  in  1880*  upheld  it  and  declared  "that  direct  taxes, 
within  the  meaning  of  the  constitution,  are  only  capita- 
tion taxes,  as  expressed  in  that  instrument,  and  taxes  on 
real  estate."  In  the  two  hearings  of  Pollock  v.  Farmers 
Loan  and  Trust  Company,  the  court  refused  specifically 
to  overturn  the  findings  of  the  Springer  case  but  at  all 
events,  under  this  decision,  a  federal  income  tax  is 
practically  impossible.3 

1  See  ^ .  g.,  Hylton  v.  United  States,  3  Dall.,  171;  Pacific  Insurance 
Co.  v.  Soule,  7  Wall.,  433;  Scholey  v.  Rew,  23  Wall.,  331;  Veazie  Bank 
v.  Fenno,8  Wall.,  533. 

'Springer  v.  United  States,  102  U.  S.,  586. 

3  Justice  Field,  in  a  separate  concurring  opinion,  less  discreet  than  the 
other  justices,  says:  "Here  I  close  my  opinion.  I  could  not  say  less 
in  view  of  questions  of  such  gravity  that  go  down  to  the  very  foundation 
of  the  government.  If  the  provisions  of  the  Constitution  can  be  set 
aside  by  an  act  of  Congress,  where  is  the  course  of  usurpation  to  end  ? 
The  present  assault  upon  capital  is  but  the  beginning.  It  will  be  but 
the  stepping-stone  to  others,  larger  and  more  sweeping,  till  our  political 
contests  will  become  a  war  of  the  poor  against  the  rich;  a  war  constantly 
growing  in  intensity  and  bitterness. 

'  If  the  court  sanctions  the  power  of  discriminating  taxation,  and 
nullifies  the  uniformity  mandate  of  the  Constitution,'  as  said  by  one 
who  has  been  all  his  life  a  student  of  our  institutions,  'it  will  mark  the 
hour  when  the  sure  decadence  of  our  present  government  will  com- 
mence.' If  the  purely  arbitrary  limitation  of  $4000  in  the  present  law 
can  be  sustained,  none  having  less  than  that  amount  of  income  being 
assessed  or  taxed  for  the  support  of  the  government,  the  limitations  of 


215] 


NULLIFIED  BY  THE  SUPREME  COURT 


121 


In  order  to  obtain  funds  for  the  war  with  Spain,  in 
an  internal  revenue  act  of  June,  I898,1  Congress  pro- 
vided among  other  things  that,  in  effect,  bills  of  lading 
for  export  merchandise  should  pay  a  stamp  tax  of  eleven 
cents.  The  court  held2  that  a  tax  on  a  bill  of  lading 
was  equivalent  to  a  tax  on  the  goods  themselves,  and 
hence  in  conflict  with  the  constitutional  prohibition  of 
taxes  on  exported  articles.3  This  is  a  case  of  no  great 
importance  so  far  as  the  point  decided  is  concerned,  and 
while  it  limited  the  financial  powers  of  Congress  it  did 
this  but  slightly. 

The  court  passed  on  a  political  question  in  Rassmussen 
v.  United  States.4  The  principal  question  at  issue  in 
this  case  was  whether  the  constitution  applied  to  Alaska 
and  limited  Congress  in  its  general  legislative  power 
over  the  territory.  As  previously  mentioned,  the  court 
held  the  constitution  did  apply.  While  the  question  has 
a  political  aspect,  the  ruling  can  affect  only  those  parts 
of  the  United  States  over  which  Congress  has  general 
legislative  control,  and  does  not  necessarily  apply  to  all 
those.  This  limits  the  decision  territorially  to  so  great 
an  extent  as  to  deprive  it  of  any  general  importance. 

future  Congresses  may  be  fixed  at  a  much  larger  sum,  at  five  or  ten  or 
twenty  thousand  dollars,  parties  possessing  an  income  of  that  amount 
alone  being  bound  to  bear  the  burdens  of  government;  or  the  limitation 
may  be  designated  at  such  an  amount  as  a  board  of  '  walking  delegates ' 
may  deem  necessary."  157  U.  S.,  607. 

1  30  Statutes  at  Large,  448. 

'Fairbank  v.  United  States,  181  U.  S.,  283. 

'Article  i,  section  9. 

4 197  U.  S.,  516.     See  also  supra,  note,  p.  in. 


122  UNCONSTITUTIONAL  LEGISLATION  [2i6 

SUMMARY 

In  the  preceding  portions  of  this  chapter  an  attempt 
has  been  made  to  analyze  the  character  of  the  federal 
statutes  annulled,  and  to  indicate  as  far  as  possible  the 
reasons  for  such  nullifications.  In  closing,  an  attempt 
will  be  made  to  summarize  regarding  the  activities  of 
the  Supreme  Court  in  declaring  federal  statutes  uncon- 
stitutional, and  point  out  how  much  of  a  factor  in  our 
national  life  the  court  has  been  because  of  this  power. 

Although  the  inviolability  of  the  constitutional  powers 
of  the  three  great  branches  of  the  government  is  sup- 
posed to  be  one  of  the  most  fundamental  principles  of 
the  constitution  and  one  which  would  be  most  solici- 
tously protected  by  the  court,  we  have  seen  that  com- 
paratively few  statutes  have  been  annulled  because  of 
their  conflict  with  this  principle.  In  all  such  cases,  too, 
with  but  one  exception,  the  court  was  only  protecting 
its  own  jurisdiction.  It  cannot  be  said,  therefore,  that 
because  of  this  constitutional  doctrine  the  court  has 
improperly  extended  its  powers  nor  taken  any  great  part 
in  our  national  life,  and  hence  subjects  itself  to  neither 
friendly  nor  hostile  criticism.1 

Under  the  second  class,  the  disturbance  of  federal  re- 
lations and  encroachments  on  the  powers  of  the  states,  the 
court  by  its  interpretation  of  the  fourteenth  amendment 
has  very  greatly  increased  its  own  power  and  jurisdiction 
and  made  the  federal  judiciary  a  larger  factor  in  our 

1  This  statement  applies  to  the  issues  decided.  The  decision  in  Mar- 
bury  v.  Madison  did,  of  course,  make  the  Supreme  Court  a  large  poten- 
tial factor  in  national  life,  but  the  doctrine  therein  asserted  could  as  well 
have  been  attached  to  any  other  constitutional  case  that  came  up.  It 
so  happened  that  a  statute  held  to  interfere  with  the  constitutional  posi- 
tion of  the  judiciary  offered  the  first  convenient  vehicle  for  the  promul- 
gation of  the  doctrine. 


217] 


NULLIFIED  BY  THE  SUPREME  COURT 


I23 


government  than  ever  before.  This  is  particularly  true, 
since  the  decisions  affecting  the  more  recent  industrial 
and  social  legislation,  from  the  nature  of  things,  can  have 
no  exact  precedent,  and  the  court,  bound  by  no  more 
definite  a  constitutional  principle  than  due  process  of 
law,  has  very  wide  discretion  in  determining  what  state 
legislation  shall  be  considered  valid  and  what  shall  not.  \ 
As  the  final  authority  in  many  instances  on  constitutional 
questions,  the  Supreme  Court  of  the  United  States  is  in 
a  position  to  negative  whatever  it  considers  objectionable 
in  the  case  of  state  statutes  of  this  nature  and  in  a  gen- 
eral way  to  guide  and  influence  this  social  and  industrial 
legislation.  Also  Congress  in  its  attempts  to  deal  with 
some  of  these  newer  problems  was  partially  checked  by 
the  court.  It  is  also  worthy  of  note  that  all  of  the 
decisions  classified  under  this  section  which  have  been 
most  severely  criticised,  have  been  rendered  since  1883 
and  two  of  them  since  1907.  The  decisions  prior  to 
1883  are  probably  not  open  to  any  severe  criticism  so 
far  as  the  actual  points  at  issue  are  concerned. 

In  regard  to  the  civil  rights  guaranteed  by  the  constitu- 
tion to  the  individual,  the  court  has  been  a  rather 
efficient  but  not  an  aggressive  protector  of  such  rights 
and  it  can  probably  be  commended  for  the  numerical 
majority  of  its  decisions  along  this  line.  On  the  other 
hand  there  is  grave  doubt  as  to  the  soundness  of  the 
doctrines  laid  down  in  Adair  v.  United  States  and  pos- 
sibly also  those  asserted  in  Monongahela  Navigation 
Co.  v.  United  States. 

In  regard  to  questions  involving  any  important  polit- 
ical policy  it  can  probably  be  as  safely  said  that  the 
court  has  uniformly  and  signally  failed  whenever  it 
attempted  to  settle  such  a  question  by  nullifying  a  fed- 
eral statute.  In  some  minor  cases  as  Rassmussen  v. 


124  UNCONSTITUTIONAL  LEGISLATION  [2i& 

United  States,1  and  Fairbank  v.  United  States2  the 
court  did  finally  settle  a  question  of  this  nature  but,  as 
already  explained,  these  were  of  but  narrow  application 
and  did  not  excite  the  interest  of,  nor  effect,  the  public 
at  large. 

The  first  case  of  this  sort  was  Scott  v.  Sandford 3 
when  the  court,  in  the  opinion  of  some,  unnecessarily 
overturned  a  statute  which  had  been  enacted  with  the 
expectation  of  settling  what  was  perhaps  the  greatest 
question  which  has  ever  confronted  this  country.  As 
previously  mentioned,  the  decision,  so  far  as  a  large  part 
of  the  public  was  concerned,  only  brought  down  censure 
on  the  court  and  gave  the  problem  no  more  the  ap- 
pearance of  a  settled  question  than  it  had  before  this 
judicial  determination  was  made.  Likewise  in  Hepburn 
v.  Griswold,4  the  decision  according  to  popular  belief 
was  wrong  and  because  of  certain  changes  occurring 
within  the  court  the  ruling  was  overturned  in  a  short 
time  after  it  was  made.  The  public  again  refused  to 
accept  the  court's  determination. 

No  one  at  the  present  time  probably  will  contend  that 
the  finding  in  the  Pollock  case  settled  the  income-tax 
question  so  far  as  public  sentiment  is  concerned.  There 
has  been  constantly  popular  argument  to  the  effect  that 
this  decision  was  not  correct  and  considerable  agitation 
to  have  Congress  re-enact  such  a  tax  and  at  least  allow 
the  court  the  opportunity  to  pass  again  on  the  question.5 
The  decision  has,  however,  led  to  the  use  of  our  consti- 
tutional machinery  in  a  successful  attempt  to  secure  an 
amendment  as  the  most  feasible  way  to  settle  the  ques- 

1  Supra,  p.  121.  ' Supra,  p.  121. 

8  Supra,  p.  117.  *  Supra,  p.  118. 

6 See  e.  g.,  Congressional  Record,  vol.  xliv,  pt.  4,  p.  4408;  ibid.,  vol. 
xliv,  Appendix,  p.  119;  ibid.,  vol.  xxxi,  pt.  8,  pp.  358  and  381. 


219]  NULLIFIED  BY  THE  SUPREME  COURT 

tion  and  obtain  what  the  judicial  branch  of  the  govern- 
ment prohibited.  Thus  in  those  instances  in  which  the 
court,  dealing  with  problems  now  solved,  attempted,  by 
nullifying  federal  statute,  to  settle  questions  of  real  and 
vital  interest  to  a  large  part  of  the  public  it  has  failed. 

In  three  of  the  more  recent  cases  in  which  federal 
statutes  have  been  annulled,  Employers  Liability  Cases,1 
Adair  v.  United  States,2  and  Keller  v.  United  States,3  the 
court  reviewed  some  of  the  social  and  industrial  problems 
which  are  so  hedged  around  by  constitutional  difficulties 
as  to  make  most  attempted  solutions  of  doubtful  validity. 
In  the  Employers  Liability  Cases  a  compromise  decision 
was  rendered  which  leaves  the  United  States  government 
considerable  freedom  in  some  directions  though  curtail- 
ing it  in  others.  In  Keller  v.  United  States  the  court 
absolutely  prohibited  to  the  United  States  the  use  of  one 
of  the  effective  means  of  dealing  with  a  great  social 
evil,  though  fairness  compels  the  statement  that  the  deci- 
sion was  probably  in  harmony  with  previous  opinions 
regarding  the  relative  powers  of  the  United  States  and 
the  states.  In  Adair  v.  United  States  the  court  made  a 
decision  based  on  the  individualistic  theories  of  a  century 
ago.  Moreover,  in  this  case  the  due  process  clause  was 
first  seriously  applied.  If  we  may  judge  from  the  deci- 
sions based  on  the  due  process  clause  in  the  fourteenth 
amendment  and  applying  to  the  states,  the  court  has  it  in 
its  power  to  make  the  similar  clause  in  the  fifth  amend- 
ment cover  practically  all  federal  legislation  dealing  with 
new  problems  concerning  which  there  are  few  or  no 
precedents.  If  the  court  does  make  this  entirely  possi- 
ble extension  of  its  power,  then  the  legislation  dealing 
with  the  more  recent  and  pressing  questions  is  under 
the  control  of  the  popularly  inaccessible  justices  of  the 

1  Supra,  p.  95.  *  Supra,  p.  in.  !  Supra,  p.  97. 


126  UNCONSTITUTIONAL  LEGISLATION  [22O 

Supreme  Court.  We  have  already  seen  that  in  at  least 
one  of  the  greatest  crises  of  the  country  the  Supreme 
Court  failed,  and  instead  of  a  final  solution  of  a  great 
problem  by  judicial  procedure,  that  high  tribunal's  deci- 
sions resulted  only  in  increased  confusion.  It  is  be- 
lieved by  many  that  the  United  States  is  now  facing 
another  real  crisis  because  of  the  unsatisfactory  char- 
acter of  present  social  and  industrial  conditions.  In  the 
light  of  a  knowledge  of  the  achievements  of  the  Supreme 
Court  in  the  past,  is  the  nation  justified  in  believing  that 
that  tribunal  will  wisely  exercise  this  large  control  over 
national  legislation  affecting  present  vital  problems  which 
it  may,  and  possibly  will,  exercise  because  of  its  power, 
readily  used  in  recent  times,  to  nullify  statutes  under 
elastic  clauses  of  the  constitution  ? 

It  is  quite  true  of  course  that  Hamilton,  Franklin, 
Madison  and  the  others  who  participated  in  the  framing 
of  the  constitution  did  not  think  that  any  thing  in  that 
document  would  give  to  the  federal  government  power 
to  pursue  the  "  white  slave  "  traffic  to  its  domicile  in  the 
states ;  nor  permit  the  national  government  to  regu- 
late the  relations  between  master  and  servant  when  these 
were  engaged  in  interstate  commerce  and  to  protect  the 
employee  from  certain  oppressions  of  his  employer.  It 
is  equally  true  that  the  same  framers  of  the  constitution 
had  no  thought  that  they  had  given  the  national  govern- 
ment control  over  telegraphs,1  or  over  the  interstate 
transmission  of  lottery  tickets,2  yet  the  Supreme  Court 
has  found  these  powers  impliedly  given  to  the  national 
government  by  the  constitution.  Again,  although 

1  See  e.  g.t  Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph 
Co.,  96  U.  S.,  i;  Telegraph  Co.  v.  Texas,  105  U.  S.,  460. 
'Champion  v.  Ames,  188  U.  S.,  321. 


22 1  ] 


NULLIFIED  BY  THE  SUPREME  COURT 


127 


originally  the  court  followed  the  common  law  rule  of 
England  that  admiralty  jurisdiction  extends  only  to  tide 
waters,  when  that  rule  was  found  insufficient  because  of 
the  vast  extent  of  inland  water  in  this  country,  the  court 
extended  its  authority  and  accepted  admiralty  jurisdic- 
tion over  the  fresh-water  rivers  of  the  country.1  In  this 
instance  the  court,  without  any  additional  legislative 
authority,  simply  extended  its  jurisdiction  by  its  own 
decisions  to  meet  the  exigencies  of  new  circumstances 
which  the  old  rule  did  not  fit.  May  it  not  be  reasonably 
expected  and  demanded  of  the  court  that  it  allow  as 
great  a  legislative  discretion  and  show  as  great  an 
eagerness  and  ability  to  meet  the  exigencies  of  changed 
circumstances  in  cases  involving  human  and  social  rights 
as  it  has  to  meet  those  involving  commerce  and  property 
rights  ? 

If  the  Supreme  Court  is  not  voluntarily  sufficiently 
liberal  and  tolerant  and  does  not  allow  sufficient  legisla- 
tive discretion  in  dealing  with  present  day  problems, 
what  remedy  is  there  ?  There  are  at  least  two  possible 
solutions.  One  would  be  to  amend  the  constitution 
either  by  giving  the  national  government  specific  powers 
to  deal  with  certain  questions  or  by  limiting  the  power 
of  the  court  itself.  The  other  method  is  by  proper  at- 
tention to  the  personnel  of  the  court  and  by  popular 
criticism  of  its  decisions  to  influence  its  attitude  towards 
certain  questions.  The  constitution  is  amended  with  the 
greatest  difficulty  but  it  is  doubtful  if  the  other  method 
offers  any  easier  or  more  feasible  remedy  when  existing 
conditions  are  considered. 


lCf.  The  Thomas   Jefferson,  10  Wheaton,  428,  and   The    Hine  v. 
Trevor,  4  Wall.,  555. 


APPENDIX  I 

Table  of  Cases  in  which  National  Legislation  has 
clared  Contrary  to  the  National  Constitution  by  the 
Court  of  the  United  States.1 

Number  of 
Opinions. 

13  How.  52.    United  States  v.  Todd 

i       i  Cranch  137.    Marbury  v.  Madison  

9      19  How.  393.     Scott  v.  Sanford   

1  2  Wall.  561;  117  U.  S.  697.     Gordon  v.  United  States. 

2  4  Wall.  333.    Ex  parte  Garland  

i      6  Wall.  160.    iReichart  v.  Felps 

1  7  Wall.  57i.     The  Alicia  

2  8  Wall.  603.     Hepburn  v.  Griswold   

i      9  Wall.  41.     United  States  v.  DeWitt  

1  9  Wall.  274.    The  Justices  v.  Murray  

2  ii  Wall.  113.     The  Collector  v.  Day  

2  13  Wall.  128.     United  States  v.  Klein 

3  17  Wall.  322.     United  States  v.  Railroad  Co 

3  92  U.  S.  214.    United  States  v.  Reese 

i  95  U.  S.  670.    United  States  v.  Fox  

i  100  U.  S.  82.    Trade  Mark  Cases 

1  106  U.  S.  629.    United  States  v.  Harris 

2  109  U.  S.  3.    Civil  Rights  Cases  

2  116  U.  S.  616.    Boyd  v.  United  States  

i  127  U.  S.  540.    Callan  v.  Wilson 

i  142  U.  S.  547.     Counselman  v.  Hitchcock  

i  148  U.  S.  312.    Navigation  Co.  v.  United  States 

3  157  U.  S.  429.  Pollock  v.  Farmers  Loan  Company.. . 


been  De- 
Supreme 


Number  of 

Dissenting 

Justices. 

1794   ••  * 
1803   .  .f^ 


1864  .. 

1866  4 

1867  .. 

1868  .. 

1869  3 
1869  ., 

1869  .. 

1870  I 

1871  2 

1873  3 

1875  2 

1877  -. 

1879  • • 

1882  .. 

1883  I 

iS&s  .- 

1887  .. 

1891  I 

1894  .. 

1894  2 


\ 


Jiu~ 


1 


1  All  cases  in  the  appendices  are  dated  according  to  the  term  of  court 
in  which  they  were  decided,  e.  g.,  cases  listed  under  1911  include  all 
cases  decided  at  the  term  convening  in  that  year  although  the  court 
did  not  adjourn  until  May,  1912. 

1  In  Baldwin  v.  Franks,  120  U  S.  678,  the  validity  of  the  same  statute 
considered  in  United  States  v.  Harris,  was  questioned  and  the  court 
reaffirmed  its  previous  decision. 

223]  129 


130  APPENDIX  I  [224 

5      158  U.  S.  601.    Pollock  v.  Farmers  Loan  Company. . .  1894  4 

2      163  U.  S.  228.    Wong  Wing  v.  United  States 1895 

V  i      174  U.  S.  47.    Kirby  v.  United  States  1899  2 

2      181  U.  S.  283.    Fairbank  v.  United  States  1901  3 

190  U.  S.  127.    James  v.  Bowman  1903  2 

197  U.  S.  516.    Rassmussen  v.  United  States 1905  . . 

5      207  U.  S.  463.    Employers  Liability  Cases  1907  4 

.3      208  U.  S.  161.    Adair  v.  United  States  1907  2 

2      213  U.  S.  138.    Keller  v.  United  States  1908  3 

i      213  U.  S.  297.    United  States  v.  Evans 1908  . . 

i      219  U.  S.  346.    Muskrat  v.  United  States  1910  . . 


APPENDIX  II 

Table  of  Cases  in  which  State  Constitutions,  State  and  Ter- 
ritorial Statutes  and  Municipal  Ordinances  have  been  De- 
clared Contrary  to  the  National  Constitution  by  the  Supreme 
Court  of  the  United  States.1 


Number  of 

Number  of 
Dissenting 

Opinions. 

Justices. 

I 

5  Cranch  115.     United  States  v.  Peters  

Pa. 

1809 

2 

6  Cranch  87.    Fletcher  v.  Peck  

Ga. 

1810 

12 

I 

7  Cranch  164.    New  Jersey  v.  Wilson  

N.J. 

1812 

I 

9  Cranch  43.    Terrett  v.  Taylor  

Va. 

1815 

I 

4  Wheaton  122.    Sturges  v.  Crowninshield  

N.Y. 

1819 

I« 

4  Wheaton  209.    McMillan  v.  McNeill  

La. 

1819 

I 

4  Wheaton  316.    McCulloch  v.  Maryland  

Md. 

1819 

3 

4  Wheaton  518.    Dartmouth  College  v.  Wood- 

ward     

N.H. 

1819 

I 

i 

6  Wheaton  131.     Farmers  &  Mechanics  Bank 

v.  Smith   

Pa. 

1821 

.  . 

2 

8  Wheaton  i.     Green  v.  Biddle  

Ky. 

1823 

I 

8  Wheaton  464.    Society,  etc.  v.  New  Haven  .  . 

Vt. 

1823 

2 

9  W'heaton  i.    Gibbons  v.  Ogden  

N.Y. 

1824 

2 

9  Wheaton  738.     Osborn  v.  U.  S.  Bank  

Ohio. 

1824 

I 

4 

12  Wheaton  213.    Ogden  v.  Saunders  

N.Y. 

1827 

3 

2 

12  Wheaton  419.    Brown  v.  Maryland  

Md. 

1827 

I 

3a 

2  Peters  449.    Weston  v.  City  of  Charleston  .  . 

S.C 

1829 

2 

4 

4  Peters  410.     Craig  v.  Missouri  

Mo. 

1830 

3 

1  This  list  includes  only  cases  in  which  legislative  enactments  were 
passed  and  declared  void  after  the  adoption  of  the  U.  S.  constitution. 

1  Partly  concurring,  partly  dissenting. 

8  The  constitutional  ruling  in  this  case  was  later  affirmed  in  a  Mary- 
land case,  Cook  v.  Moffat,  5  How.  295. 

4  Different  points  in  this  case  were  argued  at  different  times.  At 
first  hearing  five  opinions  written,  three  justices  dissenting  and  part  of 
the  statute  upheld;  at  second  hearing  one  opinion  written,  three  jus- 
tices dissenting,  and  the  statute  partially  nullified. 

225]  131 


132 


APPENDIX  II 


2      6  Peters  515.    Worcester  v.  Georgia Ga. 

i1    6  Peters  635.     Boyle  v.  Zacharie  Md. 

16  Peters  435.    Dobbins  v.  Commissioners Pa. 

16  Peters  539.     Prigg  v.  Pennsylvania  Pa. 

1  Howard  311.     Bronson  v.  Kinzie  111. 

2  Howard  608.    McCracken  v.  Hayward 111. 

3  Howard  133.    Gordon  v.  The  Tax  Court Md. 

3  Howard  151  Searight  v.  Stokes  Pa. 

3  Howard  720.     Neil  v.  Ohio  Ohio 

6  Howard  301.    Planters'  Bank  v.  Sharp Miss. 

7  Howard  283.    Passenger  Cases N.  Y.  and  Mass. 

10  Howard  190.    Woodruff  v.  Trapnall Ark. 

11  Howard  437.    Webster  v.  'Reid Iowa 

12  Howard  293.    Achison  v.  Huddleson  Md. 

14  Howard  268.     Vincennes  University  v.  In- 

diana     Ind. 

15  Howard  304.     Curran  v.  Arkansas   Ark. 

16  Howara  369.    State  Bank  v.  Knoop Ohio 

Hays  v.  Pacific  Mail  Co Cal. 

Dodge  v.  Woolsey  Ohio 

Irvine  v.  Marshall  Minn. 

Sinnot  v.  Davenport Ala. 

Almy  v.  California  Cal. 

24  Howard  461.  Howard  v.  Bugbee Ala. 

2  Black  620.  Bank  of  Commerce  v.  New  York.  N.  Y. 


3 

55 

3       17  Howard  596. 

2      18  Howard  331. 

2e    20  Howard  558. 

ieh  22  Howard  227. 

i      24  Howard  169. 

i 

i 


[226 

1832 

i 

1832 

1842 

.  . 

1842 

i 

i843 

i 

1844 

1845 

1845 

2 

1845 

I 

1848 

2 

1849 

4 

1850 

4 

1850 

1851 

•• 

1852 

3 

i853 

3 

i853 

3 

1854 

i 

i855 

3 

i857 

4 

1859 

1860 

1860 

1862 

1864 

i      2  Wall.  10.     Hawthorne  v.  Calef  Me. 


1  The  constitutional  ruling  in  this  case  was  reaffirmed  ir  Cook  v. 
Moffatt,  5  Howard  295. 

*  Statute  partly  annulled  because  in  conflict  with  contract  between 
Pennsylvania  and  United  States. 

*  Statute  partly  annulled  because  in  conflict  with   contract  between 
Ohio  and  United  States. 

4  Statute  partly  annulled  because  in  conflict  with  contract  between 
Maryland  and  United  States. 

6  The  constitutional  ruling  made  in  this  case  and  under  different  cir- 
cumstances in  Dodge  v.  Woolsey,  18  How.  331,  was  reaffirmed  in  Bank 
v.  Debolt,  18  How.  380;  Jefferson  Bank  v.  Skelly,  i  Black  436;  Franklin 
Bank  v.  Ohio,  i  Black  474;  Wright  v.  Sill,  2  Black  544,  all  being  cases 
based  on  Ohio  statutes. 

6  The  statute  involved  in  this  case  was  again  held  invalid  in  Foster 
v.  Davenport,  22  How.  244. 


227] 


APPENDIX  II 


11  2  Wall.  200.    Bank  Tax  Case  ................  N.  Y.  1864  .  . 

2  3  Wall.  51.     The  Binghamton  Bridge  ........  N.  Y.  1865  3 

2h  3  Wall.  573.    Van  Allen  v.  The  Assessors  .  .  .  .  N.  Y.  1865  .  . 

i  4  Wall.  143.     McGee  v.  Mathis  ..............  Ark.  1866  .. 

2b  4  Wall.  277.    Cummings  v.  Missouri  .........  Mo.  1866  4 

ih  4  Wall.  411.    The  Moses  Taylor  .............  Cal.  1866  .. 

i  4  Wall.  459-    Bradley  v.  The  People  ..........  111.  1866  .  . 

i  4  Wall.  535.    Von  Hoffman  v.  City  of  Quincy..  .  111.  1866  .  . 

ih  4  Wall.  555.    The  Hine  v.  Trevor  ............  Iowa  1866  .  . 

i  5  Wall.  290.     Christmas  v.  Russell  ...........  Miss.  1866  .  . 

i  5  Wall.  737.    The  Kansas  Indians  ............  Kans.  1866  .. 

i  5  Wall.  761.    The  New  York  Indians  .........  N.  Y.  1866  .  . 

1  6  Wall.  31.    Steamship  Co.  v.  Port  Wardens  ..  La.  1867  .. 

2  6  Wall.  35.    Crandall  v.  Nevada  ..............  Nev.  1867  .  . 

ih  7  Wall.  26.     Bank  v.  The  Supervisors  .......  N.  Y.  1868  .. 

2  7  Wall.  262.    .Railroad  Co.  v.  Jackson  ........  Pa.  1868  2 

i  7  Wall.  624.    The  Belfast  ....................  Ala.  1868  .. 

1  8  Wall.  44.    Furman  v.  Nichol  ...............  Tenn.  1868  .. 

2  8  Wall.  430.    Home  of  the  Friendless  v.  Rouse.  Mo.  1869  3 
2  8  Wall.  439.   Washington  University  v.  Rouse.  Mo.  1869  3 
le  ii  Wall.  610.    Dunphy  v.  Kleinsmith  .........  Mont.  1870  .. 

1  12  Wall.  204.    State  Tonnage  Tax  Cases  ......  Ala.  1870  .  . 

2  12  Wall.  418.    Ward  v,  Maryland  ............  Md.  1870  .  . 

i  13  Wall.  92.    Gibson  v.  Chouteau  ............  Mo.  1871  2 

1  13  Wall.  264.     Wilmington  Ry.  v.  Reid  ......  N..C.  1871  .. 

2b  13  Wall.  646.    White  v.  Hart  ................  Ga.  i8?i  i 

2b  13  Wall.  654.    Osborn  v.  Nicholson  ...........  Ark.  1871  i 

ib  14  Wall.  661.    Delmas  v.  Insurance  Co  ........  La.  1871  .. 

2  15  Wall.  232.    State  Freight  Tax  Case  .......  Pa.  1872  2 

2  15    Wall.    300.      State   Tax    on    Foreign-Held 

Bonds    ..................................  Pa.  1872  4 

id  15  Wall.  610.    Gunn  v.  Barry  ................  Ga.  1872  .. 

2  16  Wall.  234.     Pierce  v.  Carskadon  ..........  W.  Va.  1872  I 

i  16  Wall.  244.    Humphrey  v.  Pegues  ..........  Ga.  1872  .  . 

1  16  Wall.  314.    Walker  v.  Whitehead  .........  Ga.  1872  .  .     , 

2  19  Wall.  i.     Barings  v.  Dabney  ..............  S.  C.  1873  .  . 

12  19  Wall.  581.     Peete  v.  Morgan  ..............  Tex.  1873  .. 

3  20  Wall.  36.     Pacific  Railway  Co.  v.  McGuire.Mo.  1873  2 

2  20  Wall.  445.    Insurance  Co.  v.  Morse  ........  Wis.  1874  2 

i  a  20  Wall.  577.     Cannon  v.  New  Orleans  .......  La.  1874  .  . 

1  The  constitutional  point  in  this  case  was  further  elaborated  in  The 
Banks  v.  The  Mayor,  7  Wall.  16. 

3  An  ordinance  adopted  by  a  constitutional  convention  held  invalid. 


134                                        APPENDIX  II  [228 

2      20  Wall.  655.     Loan  Association  v.  Topeka  ..Kans.  1874      i 
2      91   U.   S.  3.     Wilmington  &  Weldon  R.  R.  v. 

King     N.  C.  1875      i 

i      91  U.  S.  275.    Welton  v.  Missouri Mo.  1875  . . 

1  92  U.  S.  259.    Henderson  v.  New  York  N.  Y.  1875  •• 

92  U.  S.  275.    Chy  Lung  v.  Freeman  Cal.  1875  . . 

94  U.  S.  238.    Inman  Steamship  Co.  v.  Tinker. N.  Y.  1876  .. 

94  U.  S.  246.  Foster  v.  Master  of  New  Orleans. La.  1876  . . 
154  U.  S.  626.     Morrill  v.  Wisconsin  Wis.  1876  .. 

95  U.  S.  104.    New  Jersey  v.  Yard  N.  J.  1877  .. 

95  U.  S.  465.     Railroad  Co.  v.  Husen  Mo.  1877  . . 

2  95  U.  s.  485.    Hall  v.  DeCuir  La.  1877  .. 

2  95  U.  S.  679.     Farrington  v.  Tennessee  Tenn.  1877      3 

3  96  U.  S.  i.    Pensacola  Telegraph  Co.  v.  West- 

ern Union  Telegraph  Co Fla.  1877      2 

2a    96  J.  S.  432.     Murray  v.  Charleston  S.  C.  1877      2 

3d    c6  U.  S.  595.     Edwards  v.  Kearzey  N.  C.  1877      i 

4  97  U.  S.  454.     Keith  v.  Clark  Tenn.  1878      3 

i      97  U.  S.  566.     Cook  v.  Pennsylvania  Pa.  1878  . . 

1  99  U.  S.  309.    University  v.  People  111.  1878  . . 

2  100  U.  S.  303.    Strauder  v.  West  Virginia W.  Va.  1879      2 

2c    100  U.  S.  434.    Guy  v.  Baltimore  Md.  1879      i 

1  102  U.  S.  123.    Tiernan  v.  Rinker  Tex.  1880  .. 

2  102  U.  S.  672.    Hartman  v.  Greenhow Va.  1880      i 

i       103  U.  S.   5.     Hall.v.  Wisconsin   Wis.  1880  .. 

1  103  U.  S.  344.     Webber  v.  Virginia  Va.  1880  .. 

2  103  U.  S.  358.    Wolff  v.  New  Orleans La.  1880  . . 

i       105  U.  S.  278.    Louisiana  v.  Pilsbury La.  1881  .. 

2d     105  U.  S.  362.    Asylum  v.  New  Orleans  La.  1881      2 

i      105  U.  S.  460.    Telegraph  Co.  v.  Texas Tex.  1881  .. 

i1    105  U.  S.  733.    'Rails  County  Court  v.  U.  S....Mo.  1881  .. 

i       106  U.  S.  487.    Parkersburg  v.  Brown W.  Va.  1882  . . 

i       107   U.    S.   59.     People  v.   Compagnie  Trans- 

Atlantique    N.  Y.  1882  .. 

2b    107  U.  S.  221.    Kring  v.  Missouri  Mo.  1882      4 

i      in  U.  S.  716.    Nelson  v.  St.  Martin's  Parish.. La.  1883  •• 

i  a    112  U.  S.  69.    Moran  v.  New  Orleans La.  1884  .. 

ic    113  U.  S.  i.    Cole  v.  LaGrange  Mo.  1884  .. 

1  U4U.  S.  1 06.    Gloucester  Ferry  Co.  v.  Pa Pa.  1884  .. 

2  114  U.  S.  270.    Virginia  Coupon  Cases Va.  1884      4 

i       115  U.  S.  566.     Effinger  v.  Kenney  Va.  1885  . . 

1  The  constitutional  ruling  in  this  case  was  reaffirmed  in  Scotland 
County  Court  v.  Hill,  140  U.  S.  41. 


229] 


APPENDIX  II 


135 


id    115  U.  S.  650.     New  Orleans  Gas  Co.  v.  La. 

Light  Co La.  1885  .. 

i*g  115  U.  S.  674.  New  Orleans  Water  Co.  v, 

iRivers  La.  1885  •  • 

i  115  U.  S.  683.  Louisville  Gas  Co.  v.  Citizens 

Gas  Co Ky.  1885  . . 

i  116  U.  S.  131.  Fisk  v.  Jefferson  Police  Jury  .  .La.  1885  .. 

i  116  U.  S.  289.  Mobile  v.  Watson  Ala.  1885  .. 

i  116  U.  S.  446.  Walling  v.  Michigan Mich.  1885  . . 

i  116  U.  S.  572.  Royall  v.  Virginia Va.  1885  . . 

i2  117  U.  S.  34.  Pickard  v.  Pullman  Southern  Car 

Company Tenn.  1885  . . 

1  11711.8.151.    Van  Brocklin  v.  Tennessee Tenn.  1885  .. 

ih     118  U.  S.  90.     Spraigue  v.  Thompson  Ga.  1885  .. 

la    118  U.  S.  356.    Yick  Wo  v.  Hopkins  Cal.  1885  . . 

2  118  U.  S.  557.    Railroad  Co.  v.  Illinois 111.  1886  3 

2      120   U.    S.    489.      Robbins    v.    Shelby   Taxing 

District    Tenn.  1886  3 

2  120  U.  S.  502.    Corson  v.  Maryland  Md.  1886  . . 

i       121  U.  S.  186.    Barren  v.  Burnside Iowa  1886  . . 

i       121  U.  S.  230.    Fargo  v.  Michigan Mich.  1886  . . 

i       122  U.  S.  284.     Seibert  v.  Lewis  Mo.  1886  . . 

i      122    U.    S.    326.      Philadelphia    S.    S.    Co.    v. 

Pennsylvania  Pa.  1886  . . 

i       122   U.    S.   347.     Western   Union   Tel.    Co.   v. 

Pendleton    Ind.  1886  .. 

3  125  U.  S.  465.     Bowman  v.  Chicago  &  North 

W.  Ry.  Co Iowa  1887  3 

ih  125  U.  S.  530.  Western  Union  Tel.  Co.  v. 

Mass Mass.  1887  .. 

id  127  U.  S.  i.  California  v.  Pacific  Ry.  Company. .  Cal.  1887  . . 
i  127  U.  S.  411.  Ratterman  v.  Western  Union 

Tel.  Co Ohio  1887  .. 

i  a  127  U.  S.  640.  Leloup  v.  Port  of  Mobile Ala.  1887  . . 

1  128  U.  S.  129.    Ashei  v.  Texas  Tex.  1888  .. 

2  129  U.  S.  141.     Stoutcnburgh  v.  Hennick B.C.  1888  I 

1  132  U.  S.  472.   Western  Union  Tel.  Co.  v.  Ala.. Ala.  1889  .. 

2  134  U.  S.  160.    Ex  parte  Medley Col.  1889  2 

1  The  constitutional  ruling  in  this  case  was  reaffirmed  in  Water 
Works  Co.  v.  New  Orleans  Water  Co.,  120  U.  S.  64. 

1  The  constitutional  ruling  in  this  case  was  reaffirmed  in  Tennessee 
v.  Pullman  Co.,  117  U.  S.  51. 


136                                       APPENDIX  II  [230 

31     134  U.  S.  418.    Railroad  v.  Minnesota Minn.  1889  3 

2      135  U.  S.  loo.    Leisy  v.  Hardin  Iowa  1889  3 

2      135  U.  S.  161.    Lyng  v.  Michigan   Mich.  1889  3 

i       135  U.  S.  662.    McGahey  v.  Virginia Va.  1889  . . 

la    136  U.  S.  104.    McCall  v.  California Cal.  1889  3 

i       136  U.   S.   114.     Norfolk  &  Western  Ry.   Co. 

v.  Pa Pa.  1889  3 

136  U.  S.  313.     Minnesota  v.  Barber  Minn.  1889  .. 

138  U.  S.  78.    Brimmer  v.  Rebman Va.  1890  . . 

140  U.  S.  i.    Pennoyer  v.  McConnaughy Ore.  1890  . . 

141  U.  S.  47  Crutcher  v.  Kentucky  Ky.  1890  2 

141  U.  S.  62.    Voight  v.  Wright Va.  1890  .. 

la    147  U.  8.396.    Harman  v.  Chicago  111.  1892  .. 

1  a    153  U.  S.  289.    Brennan  v.  Titusville Pa.  1893  . . 

2  153  U.   S.  486.     Mobile  &  Ohio  Ry.   Co.  v. 

Tennessee    Tenn.  1893  4 

1  153  U.  S.  628.     Erie  Ry.  v.  Pennsylvania Penn.  1893  . . 

2  154  U.  S.  204.     Covington  &  Cincinnati  Bridge 

Co.  v.  Kentucky  Ky.  1893  . . 

ih  158  U.  S.  98.  Gulf  Colorado  &  S.  F.  Ry.  Co. 

v.  Hefley Tex.  1894  . . 

i  161  U.  S.  134.  Bank  of  Commerce  v.  Tenn- 
essee   Tenn.  1895  i2 

i       163  U.  S.  118.    Barnitz  v.  Beverly Kans.  1895  ... 

i      163  U.  S.  142.    Illinois  Central  Ry.  v.  Illinois . .  111.  1895  . . 

1  164  U.  S.  403.    Mo.'Pac.  Ry.  Co.  v.  Nebraska. Nebr.  1896  .. 

2  165  U.  S.  58.    Scott  v.  Donald  S.  C.  1896  i 

2      165  U.  S.  150.    -Railroad  v.  Ellis  Tex.  1896  3 

i      165  U.  S.  578.    Allgeyer  v.  Louisiana La.  1896  . . 

le    1 66  U.   S.   464.     American   Publishing  Co.   v. 

Fisher     Utah  1896  .. 

1  169  U.  8.466.    Smyth  v.  Ames Nebr.  1897  .. 

ib     170  U.  S.  243.    Houston  &  Tex.  Central  Ry.  v. 

Texas     Tex.  1897  •  • 

ib     170  U.  S.  343.    Thompson  v.  Utah Utah  1897  2 

2  171  U.  S.  i.    Schollenberger  v.  Pennsylvania.  .Pa.  1897  2 

1  171  U.  S.  30.     Collins  v.  New  Hampshire  .  ...N.  H.  1897  2 
la    172  U.  S.  i.    Walla  Walla  City  v.  Walla  Walla 

Wa^er  Co Wash.  1898  . . 

2  172  U.  S.  239.    Blake  v.  McClung Tenn.  1898  2 

1  The  statute  passed  on  in  this  case  was  again  held  invalid  in  Minne- 
apolis Railroad  Co.  v.  Minnesota,  134  U.  S.  467. 
8  Partly  concurring,  partly  dissenting. 


23 1  ]  APPENDIX  II  1 37 

2a     172  U.  S.  269.     Norwood  v.  Baker  Ohio  1898  3 

i       173  U.  S.  193.     Dewey  v.  Des  Moines  Iowa  1898  .. 

i       173  U.  S.  276.    Ohio  v.  Thomas Ohio  1898  . . 

1  173  U.  S.  684.    Railroad  Co.  v.  Smith  Mich.  1898  3 

2  177  U.  S.  66.    Houston  &  Texas  Central  R.  R. 

Co.   v.   Texas    Tex.  1899  .. 

2  177  U.  S.  514.     Cleveland,  Cincinnati,  Chicago 

&  St.  L.  iRy.  Co.  v.  Illinois  111.  1899  . . 

la    177  U.   S.  558.     Los   Angeles  v.   Los  Angeles 

Water    Co Cal.  1899  •• 

3  179  U.  S.  223.    Stearns  v.  Minnesota Minn.  1900  .. 

1  179  U.  S.  302.    Duluth  &  Iron  Range  R.  R.  Co. 

v.  St.  Louis  Co Minn.  1900  . . 

2  183  U.  S.  79-    Getting  v.  Stock  Yards  Co Kans.  1901  .. 

2b    184  U.  S.  27.    Louisville  &  Nashville  .R.  R.  Co. 

v.   Eubank    Ky.  1901  2 

1  a     184  U.  S.  368.     Detroit  v.  Detroit  Citizens  St. 

Ry.   Co Mich.  1901  . . 

2  184  U.  S.  540.     Connolly  v.  Sewer  Pipe  Co.  . .  111.  1901  i 

i       185  U.  S.  27.    Stockard  v.  Morgan .Tenn.  1901  . . 

la     187  U.  S.  622.    Caldwell  v.  North  Carolina  . . .  .N.C.  1902  . . 

i       188  U.  S.  385.    Ferry  Co.  v.  Kentucky Ky.  1902  2 

1  189  U.  S.  185.    The  Roanoke Wash.  1902  .. 

2  191  U.  S.  17.    The  Robert  W.  Parsons N.  Y.  1903  4 

i       191  U.  S.  171.    Allen  v.  Pullman  Co Tenn.  1903  .. 

2a    192  U.  S.  64.    Postal  Telegraph  Co.  v.  Taylor. Pa.  1903  2 

la    194  U.  S.  517.    Cleveland  v.  Cleveland  Ry.  Co.. Ohio  1903  .. 

I       195  U.  S.  i.    Bradley  v.  Lightcap  111.  1903  . . 

la    195  U.  S.  223.    Dobbins  v.  Los  Angeles Cal.  1904  . . 

1  196  U.  S.  194.   Central  Ry.  of  Ga.  v.  Murphey.Ga.  1904  .. 

3  198  U.  S.  45.    Lochner  v.  New  York N.  Y.  1904  4 

2  199  U.  S.  194.    Union  Transit  Co.  v.  Kentucky. Ky.  1905  .. 
i      201  U.  S.  321.     Houston  &  Texas  Central  Ry. 

v.    Mayes    Tex.  1905  3 

la    201  U.  S.  529.    Cleveland  v.  Cleveland  Electric 

R.  R Ohio  1905  .. 

i      201  U.  S.  543.    Powers  v.  Railroad  Co Mich.  1905  i 

2C    202  U.  S.  453.    Vicksburg  v.  Waterworks  Co.  .  Miss.  1905  i  » 

i      202  U.  S.  543.     McNeill  v.  Southern  Ry.  Co. . .  N.C.  1905  . . 

la    203  U.  S.  507.    Rearick  v.  Pennsylvania Pa.  1906  .. 

i      204  U.  S.  103.    American  Co.  v.  Colorado Col.  1906  4 

1  205  U.  S.  503.    Savings  Bank  v.  Des  Moines  . .  Iowa  1906  3 

2  206  U.  S.  129.    Express  Co.  v.  Kentucky Ky.  1906  I 

i  a    206  U.  S.  496.    Vicksburg  v.  Vicksburg  Water 

Company     Miss.  1906  . . 


138  APPENDIX  II  [232 

i  207  U.  S.  127.    Railroad  Co.  v.  Wright Ga.  1907  . . 

1  208  U.  S.  115.     Darnell  v.  Memphis  Tenn.  1907  .. 

2  209  U.  S.  123.     Ex  parte  Young  Minn.  1907  i 

2  210  U.  S.  217.    Railroad  Co.  v.  Texas  Tex.  1907  4 

la  210  U.  S.  373.    Londoner  v.  Denver Col.  1907  2 

i  212  U.  S.  19.    Willcox  v.  Gas  Co N.  Y.  1908  . . 

2b  212  U.   S.   132.     Louisville  &  Nashville  R.  R. 

v.   Stockyards    Ky. 

U.  S.  315.    Nielson  v.  Oregon  Ore. 

U.  S.  218.    Adams  Express  Co.  v.  Kentucky. Ky 
U.  S.  170     Hubert  v.  New  Orleans  La. 


1908 
1908 
1908 
1909 


I  212 
I  214 
I  215 

la    21511.5.417.    Minneapolis  v.  Minneapolis  Ky.. Minn.    1909 
i      215 

31 

i 

I 

I 

i 


216 
216 
216 
217 
217 

217 


1  218 
i2  218 

2  219 
I  221 

i eh  222 

ih  222 

ih  222 

I  223 

I  223 

I  223 


U.S.5I5.    Flaherty  v.  Hanson  N.  D.  1909  3 

U.  S.  i.    Telegraph  Co.  v.  Kansas Kans.  1909  4 

U.  S.  146.    Ludwig  v.  Telegraph  Co Ark.  1909  3 

U.  J.  400.     Southern  R.  R.  Co.  v.  Greene.. Ala  1909  3 

U.  S.  91.    Text  Book  Co.  v.  Pigg  Kans.  1909  2 

U.  S.  136.    St.  Louis  &  Southwestern  R.  R. 

Co.  v.  Arkansas  Ark.  1909  i 

U.  S.  196.     Missouri  Pacific  R.  R.  Co.  v. 

Nebraska   Nebr.  1909  2 

U.  S.  124.    Dozier  v.  Alabama  Ala.  1909  .. 

U.  S.  135.    Herndon  v.  Railroad  Co Mo.  1909  . . 

U.  S.  219.    Bailey  v.  Alabama Ala.  1910  2 

U.  S.  229.    Oklahoma  v.  Kansas  Gas  Co.  ..Okla.  1910  »  3 

U.  S.  334.    Berryman  v.  Whitmore  College.  Wash.  1911 

U.  S.  370.    Railroad  Co.  v.  Washington  ..Wash.  1911  .. 

U.  S.  424.    Southern  R.  R.  Co.  v.  Reid  . . .  .N.  C.  1911 

U.  S.  70.     Railroad  Co.  v.  Cook  Co Ky.  1911  .. 

U.  S.  280.     Railroad  Co.  v.  O'Connor  ....Col.  1911  .. 

U.  S.  298.     Oklahoma  v.  Express  Co Okla.  1911  .. 


1  The  constitutional  ruling  in  this  case  was  reaffirmed  in   Pullman 
Co.  v.  Kansas,  216  U.  S.  56. 

2  Two  statutes  partially  nullified  in  this  case. 

a  Municipal  ordinance,  b  State  constitution,  c  Statute  and  city 
ordinance,  d  Constitution  and  statute,  e  Territorial  statute,  g  State 
constitution  and  municipal  ordinance,  h  In  conflict  with  U.  S.  statute 
which  Congress  had  constitutional  authority  to  enact. 


APPENDIX  III 
STATISTICAL  SUMMARIES 

Summary  of  National  Statutes,  State  Constitutions  and 
Statutes,  and  Municipal  Ordinances  which  have  been  held 
unconstitutional  by  the  Supreme  Court  of  the  United  States 
because  of  conflict  with  the  National  Constitution.1 


United  States 

State 

Municipal 

Total 

j 

j 

j 

2 

6 

6 

g 

i 

1830-1840  

•• 

2 
II* 

2 

j  j 

iRcn   1860 

TO3 

T  T 

1860-1870  

g 

254 

•12 

1870-1880  

V? 

~5 

47 

1880    1890  

$" 

s6 

C7 

26* 

4" 

-1C 

o 

/in9 

TO 

s 

610 

6 

33 

223 

23 

279  " 

1  This  list  includes  only  acts  passed  and  declared  void  after  the  adop- 
tion of  the  constitution. 

2  Includes  one  statute  of  the  territory  of  Iowa. 

3  Includes  one  statute  of  the  territory  of  Minnesota. 

4  Includes  one  statute  of  the  territory  of  Montana. 

5  Includes  Guy  z/.  Baltimore,  100  U.  S.,  434,  in  which  both  a  state 
statute  and  a  municipal  ordinance  were  held  void. 

6 Includes  Cole  v.  LaGrange,  113  U.  S.,  i,  in  which  both  a  state 
statute  and  a  municipal  ordinance  were  held  void. 

7  One  legislative  act  of  the  District  of  Columbia  included. 

8  Includes  one  statute  of  the  territory  of  Utah. 

'Includes  Vicksburg  v.  Water  Works  Co.,  202  U.  S.,  453,  in  which 
both  a  state  statute  and  municipal  ordinance  were  held  void. 

10  Includes  one  statute  of  the  territory  of  Washington. 

11  The  difference  in  this  total  and  the  one  appearing  in  the  Statistical 
Summary  in  Appendix  V  is  not  a  real  discrepancy  but  is  due  to  the  fact, 
as  indicated  in  the  notes,  that  in  Appendix  III  some  cases  are  counted 
twice  because  two  separate  legislative  enactments  were   held  void   in 
each,  and  in  Appendix  V  a  few  cases  are  listed  twice  because  equally  in 
conflict  with  two' constitutional  clauses. 

233]  139 


140 


APPENDIX  III 


[234 


Summary  of  cases  in  which  a  conflict  between  the  National 
Constitution  and  Statutes,  State  Constitutions  and  Municipal 
Ordinances  was  alleged  to  exist,  but  the  legislation  upheld  by 
the  Supreme  Court  of  the  United  States. 


United  States 

State 

Municipal 

Total 

i 

i 

2 

2 

7" 

1820—1870 

2 

n* 

T7 

1870—1840 

2 

nj 

TO 

1840—181x0. 

5" 

1  6s 

i 

22 

TQerj    7860 

5" 

T  e 

i 

21 

1860—1870.  . 

1  7 

28 

2 

47 

lo 

27 

73* 

O4 

IOO 

OT 

im56 

& 

TC2 

AO 

ISO7  8 

2I8 

211 

e-j 

2H9  10 

259 

201 

I7ll 

I" 

IO 

185 

646 

73 

904 

I  Includes  one  statute  of  the  territory  of  Florida. 

'Includes  Poole  v.  Fleiger,  11  Peters,  185,  in  which  statutes  of  both 
North  Carolina  and  Tennessee  were  upheld. 

3  In  the  License  Cases,  5  Howard,  504,  statutes  of  Rhode  Island,  New 
Hampshire,  and  Massachusetts,  were  upheld. 

4  Includes  Transportation  Co.  v.  Wheeling,  99  U.  S.,  273,  in  which 
both  a  state  statute  and  a  municipal  ordinance  were  upheld. 

5  Includes  four  cases  in  which  both  a  state  statute  and  a  municipal 
ordinance  were  upheld. 

6  Includes  one  statute  of  the  territory  of  Idaho,  one  of  the  territory  of 
Oregon,  and  one  act  of  the  District  of  Columbia. 

7  Includes  five  territorial  statutes. 

8  Includes  four  cases  in  which  both  state  statutes  and  municipal  ordi- 
nances were  upheld. 

9  Includes  eight  cases  in  which  both  state  statutes  and  municipal  ordi- 
nances were  upheld. 

10  Includes  one  territorial  statute. 

II  Includes  Cincinnati  v.  Railroad  Co.,  223  U.  S.,  390,  in  which  both 
a  state  statute  and  a  municipal  ordinance  were  upheld. 


235] 


APPENDIX  III 


141 


Ratio  which  statutes  held  void  by  the  Supreme  Court  of  the 
United  States  bear  to  the  total  number  of  statutes  contested 
on  constitutional  grounds,  expressed  in  per  cent. 


Federal 
Statutes 

State 
Statutes 

Municipal 
Ordinances 

Nullified 

All 
statutes 

Nullified 

~ 
ID 

JZ 

o, 
D 

Per  cent, 
nullified 

Nullified 

2 

<u 

J! 

s 

.*o 

,M     <U 

C<J3 
cu^ 

Si 

04 

Nullified 

~ 
*o3 

J3 

a 

«j-S 

cy= 

I1 

P-i 

T3 

*o; 

1 

Per  cent, 
nullified 

i 
i 

2 

2 
2 

5 
5 
13 
27 

31 
40 

53 

50 
33 

\ 

!! 

13 

i 

3 

6 

9 

2 

II 
II 

33 
47 
57 
35 
58 
6 

I 

2 

7 
13 
13 

22 

21 

43 
109 
152 

211 
29I 
19 

e 

46 
41 
13 

33 
34 
43 
30 
27 
14 
17 
24 

2 

6 
8 

2 

II 
10 

25 

39 
48 
26 

46 

3 
ii 
ii 
16 

2 

73 
109 
150 
213 

17 

67 
42 
15 
41 
40 

47 
35 
3i 
15 
16 
26 

i 

3 

5 

>l 

i 
I 

j 

35 
2 

25 
2g 
16 

,   29 

7  8  eo—  r8/io 

i 
8 
5 

4 

iRfin  iRvn 

7870—7880 

7880—1800 

1800—  TOOO 

TOOO  -  TOTO 

7OTO—TOT  T 

APPENDIX  IV 

Cases  in  which  State  Constitutions  and  Statutes,  Territorial 
Statutes  and  Municipal  Ordinances  were  nullified  by  the  Fed- 
eral Supreme  Court,  Classified  by  States. 

A  labama — 

h  22  Howard  227.     Sinnot  v.  Davenport   1859 

24  Howard  461.    Howard  v.  Bugbee  1860 

7  Wall.  624.    The  Belfast  1868 

12  Wall.  204.    State  Tonnage  Tax  Cases  1870 

116  U.  S.  289.    Mobile  v.  Watson 1885 

a  127  U.  S.  640.    Leloup  v.  Port  of  Mobile 1887 

132  U.  S.  472.    Western  Union  Tel.  Co.  v.  Alabama  1889 

216  U.  S.  400.    Southern  R.  R.  Co.  v.  Greene  1909 

218  U.  S.  124.    Dozier  v.  Alabama 1909 

219  U.  S.  219.     Bailey  v.  Alabama  1910 

Total  10 

Arizona — 
Arkansas — 

10  Howard  190.     Woodruff  v.  Trapnall  1850 

15  Howard  304.    Curran  v.  Arkansas  1853 

4  Wall.  143.     McGee  v.  Mathis  1865 

b  13  Wall.  654.     Osborn  v.  Nicholson   1871 

216  U.  S.  146.    Ludwig  v.  Western  Union  Telegraph 1909 

217  U.  S.  136.    Railroad  Co.  v.  Arkansas  1909 

Total   6 

California — 

17  Howard  596.    Hays  v.  Pacific  Mail  S.  S.  Co 1853 

24  Howard  169.    Almy  v.  California  1860 

h  4  Wall.  411.    The  Moses  Taylor  1866 

92  U.  S.  275.    Chy  Lung  v.  Freeman 1875 

a  118  U.  S.  356.    Yick  Wo  v.  Hopkins  1885 

d  127  U.  S.  i.    California  v.  Central  Pacific  Ry.  Co 1887 

a  136  U.  S.  104.     McCall  v.  California  1889 

a  177  U.  S.  558.    Los  Angeles  v.  Los  Angeles  Water  Co 1899 

a  195  U.  S.  223.    Dobbins  v.  Los  Angeles 1904 

Total  9 

142  [236 


237] 


APPENDIX  IV 


Ex  parte  Medley   1889 

American  Co.  v.  Colorado  1906 

Londoner  v.  Denver  1907 

Railroad  Co.  v.  O'Connor  1911 

Total   4 


Colorado — 

134  U.  S.  160. 

204  U.  S.  103. 

a  210  U.  S.  373. 

223  U.  S.  280. 

Connecticut — 
Delaware — 

Florida — 

96  U.  S.  i.    Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.  . .  1877 

Total   i 

Georgia — 

6  Cranch  87.     Fletcher  v.  Peck  1810 

6  Peters  515.     Worcester  v.  Georgia   1832 

b  13  Wall.  646.    White  v.  Hart  1871 

d  15  Wall.  610.     Gunn  v.  Barry 1872 

16  Wall.  244.    Humphrey  v.  Pegues  1872 

16  Wall.  314.     Walker  v.  Whitehead   1872 

h  1 18  U.  S.  90.     Spraigue  v.  Thompson   1885 

196  U.  S.  194.     Central  Ry.  of  Ga.  v.  Murphey 1904 

207  U.  S.  127.    Railroad  Co.  v.  Wright  1907 

Total  9 

Idaho — 
Illinois — 

1  Howard  311.     Bronson  v.  Kinzie 1843 

2  Howard  608.    McCracken  v.  Hayward 1844 

h  4  Wall.  459.    Bradley  v.  The  People  1866 

4  Wall.  535.    Von  Hoffman  v.  City  of  Quincy  1866 

99  U.  S.  309.    Univeisity  v.  The  People  1878 

118  U.  S.  557.    W.  St.  L.  &  Pacific  Ry.  Co.  v.  Illinois  1886 

a  147  U.  S.  396.     Harman  v.  Chicago  1892 

163  U.  S.  142.     Illinois  Central  Ry.  v.  Illinois  1895 

177  U.  S.  514.    Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Ry. 

v.  Illinois   1899 

184  U.  S.  540.    Connolly  v.  Union  Sewer  Pipe  Co 1901 

195  U.  S.  i.    Bradley  v.  Lightcap  1903 

Total   ii 

Indiana — 

14  Howard  268.    Vincennes  University  v.  Indiana  1852 

122  U.  S.  347-    Western  Union  Tel.  Co   v.  Pendleton  i885 

Total  2 

Iowa — 

e  1 1  Howard  437.    Webster  v.  Reid  1850 

h  4  Wall.  555.     The  Hine  v.  Trevor  1866 


144  APPENDIX  IV  [238 

121  U.  S.  1 86.    Barren  v.  Burnside 1886 

125  U.  S.  465.    Bowman  v.  Chicago  &  North  W.  Ry.  Co 1887 

135  U.  S.  loo.    Leisy  v.  Hardin  1889 

173  U.  S.  193.    Dewey  v.  Des  Moines  1898 

205  U.  S.  503.     Savings  Bank  v.  Des  Moines ^ 1906 

Total  7 

Kansas — 

5  Wall.  737.    The  Kansas  Indians  1866 

20  Wall.  655.    Loan  Association  v.  Topeka  J874 

163  U.  S.  118.     Barnitz  v.  Beverly  1895 

183  U.  S.  79.    Cotting  v.  Kansas  City  Stock  Yards  Co 1901 

216  U.  S.  i.    Western  Union  Tel.  Co.  v.  Kansas  1909 

217  U.  S.  91.    International  Text  Book  Co.  v.  Pigg 1909 

Total  6 

Kentucky — 

8  Wheaton  i.     Greene  v.  Biddle   1823 

115  U.  S.  683.    Louisville  Gas  Co.  v.  Citizens  Gas  Co 1885 

141  U.  S.  47.     Crutcher  v.  Kentucky  1890 

154  U.   S.  204.     Covington  &  Cincinnati  Bridge  Co.  v.  Ken- 
tucky       1893 

b  184  U.  S.  27.    Railroad  Co.  v.  Eubank  1901 

188  U.  S.  385.    Louisville  Ferry  Co.  v.  Kentucky  1902 

199  U.  S.  194.    Union  Transit  Co.  v.  Kentucky 1905 

206  U.  S.  129.    Express  Co.  v.  Kentucky  1906 

b  212  U.  S.  132.     Railroad  Co.  v.  Stockyards  Co 1908 

214  U.  S.  218.     Adams  Express  Co.  v.  Kentucky  1909 

223  U.  S.  70.    Railroad  Company  v.  Cook  County 1911 

Total  ii 

Louisiana — 

4  Wheaton  209.    McMillan  v.  McNeil  1819 

6  Wall.  31.    Steamship  Co.  v.  Port  Wardens  1867 

b  14  Wall.  661.    Delmas  v.  Insurance  Co 1871 

a  20  Wall.  577.     Cannon  v.  New  Orleans  1874 

94  U.  S.  246.    Foster  v.  Master  of  New  Orleans  1876 

95  U.  S.  485.    Hall  v.  DeCuir 1877 

103  U.  S.  358.    Wolff  v.  New  Orleans  1880 

105  U.  S.  278.    Louisiana  v.  Pilsbury  1881 

d  105  U.  S.  362.    Asylum  v.  New  Orleans  1881 

in  U.  S.  716.     Nelson  v.  St.  Martin's  Parish   1883 

a  1 12  U.  S.  69.    Moran  v.  New  Orleans  1884 

d  115  U.  S.  650.  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.  1885 

g  115  U.  S.  674.    New  Orleans  Water  Co.  v.  Rivers  1885 

116  U.  S.  131.     Fisk  v.  Jefferson  Police  Jury 1885 

165  U.  S.  578.    Allgeyer  v.  Louisiana 1896 

215  U.  S.  170.    Hubert  v.  New  Orleans  1909 

Total  .  .   16 


239]  APPENDIX  IV  I45 

Maine — 

2  Wall.  10.     Hawthorne  v.  Calef   1864 

Total  i 

Maryland — 

4  Wheaton  316.    McCulloch  v.  Maryland  1819 

12  Wheaton  419.     Brown  v.  Maryland    1824 

6  Peters  635.     Boyle  v.  Zacharie 1832 

3  Howard  133.    Gordon  v.  The  Tax  Court 1845 

12  Howard  293.    Achison  v.  Huddleson 1851 

12  Wall.  418.    Ward  v.  Maryland  1870 

c  100  U.  S.  434.    Guy  v.  Baltimore 1879 

120  U.  S.  502.     Corson  v.  Maryland   1886 

Total  8 

Mass  a  chuset  ts — 

1 7  Howard  283.     Passenger  Cases   1849 

hi25  U.  S.  530.    Western  Union  Tel.  Co.  v.  Massachusetts 1887 

Total  2 

Michigan — 

1 16  U.  S.  446.     Walling  v.  Michigan  1885 

121  U.  S.  230.    Fargo  v.  Michigan 1886 

135  U.  S.  161.    Lyng  v.  Michigan  1889 

173  U.  S.  684.    L.  S.  &  M.  S.  Ry.  Co.  v.  Smith 1898 

a  184  U.  S.  368.    Detroit  v.  Detroit  Citizens  St.  Ry.  Co 1902 

201  U.  S.  543.    Powers  v.  Railroad  Co 1905 

Total  6 

Minnesota — 

e  20  Howard  558.    Irvine  v.  Marshall  1857 

134  U.   S.  418.     Chicago,   Milwaukee  &  St.  Paul  Ry.   Co.  v. 

Minnesota    1889 

136  U.  S.  313.    Minnesota  v.  Barber 1889 

179  U.  S.  223.     Stearns  v.  Minnesota 1900 

179  U.  S.  302.    Duluth  Iron  Range  Ry.  v.  St.  Louis  Co 1900 

209  U.  S.  123.    Ex  parte  Young 1907 

a  215  U.  S.  417.     Minneapolis  v.  Minneapolis  St.  Ry 1909 

Total  !..  7 

Mississippi — 

6  Howard  301.    Planter's  Bank  v.  Sharp  1848 

5  Wall.  290.    Christmas  v.  Russell  1866 

c  202  U.  S.  453.    Vicksburg  v.  Waterworks  Co 1905 

a  206  U.  S.  496.    Vicksburg  v.  Vicksburg  Water  Co 1906 

Total  4 

1  Listed  also  under  New  York. 


146 


APPENDIX  IV 


[240 


Missouri — 

4  Peters  410.     Craig  v.  Missouri  1830 

b  4  Wall.  277.     Cummings  v.  Missouri  1866 

8  Wall.  430.    Home  of  the  Friendless  v.  Rouse 1869 

8  Wall.  439.    Washington  University  v.  Rouse  1869 

13  Wall.  92.     Gibson  v.  Choateau  1871 

20  Wall.  36.     Pacific  Railway  Co.  v.  McGuire  1873 

91  U.  S.  275.    Welton  v.  State  of  Missouri  1875 

95  U.  S.  465.    Railroad  Co.  v.  Husen 1877 

105  U.  S.  733.    Rails  County  Court  v.  United  States 1881 

b  107  U.  S.  221.    Kring  v.  Missouri  1882 

c  113  U.  S.  i.    Cole  v.  Lagrange 1884 

122  U.  ,S.  284.    Seibert  v.  Lewis  1886 

218  U.  S.  135.    Herndon  v.  Chicago,  Rock  Island  Ry 1909 

Total  13 

Montana — 

e  ii  Wall.  610.    Dunphy  v.  Kleinsmith  1870 

Total  i 

Nebraska — 

164  U.  S.  403.    Missouri  Pacific  Ry.  Co.  v.  Nebraska 1896 

169  U.  S.  466.    Smyth  v.  Ames 1897 

217  U.  S.  196.    Missouri  Pacific  R.  R.  Co.  v.  Nebraska 1909 

Total  3 

Nevada — 

6  Wall.  35.     Crandall  v.  Nevada 1867 

Total  i 

New  Hampshire — 

4  Wheaton  518.    Dartmouth  College  v.  Woodward 1819 

171  U.  S.  30.     Collins  v.  New  Hampshire 1897 

Total  2 

New  Jersey — 

7  Cranch  164.    New  Jersey  v.  Wilson  1813 

95  U.  S.  104.    New  Jersey  v.  Yard 1877 

Total  2 

New  Mexico — 
New  York— 

4  Wheaton  122.     Sturges  v.  Crowninshield  1815 

9  Wheaton  i.     Gibbons  v.  Ogden   1824 

12  Wheafon  213.    Ogden  v.  Saunders  1827 

1  7  Howard  283.    Passenger  Cases  1849 


Listed  also  under  Massachusetts. 


241] 


APPENDIX  IV 


2  Black  620.    Bank  of  Commerce  v.  New  York  City 1862 

2  Wall.  200.    Bank  Tax  Case 1864 

3  Wall.  51.    The  Binghamton  Bridge 1865 

h  3  Wall.  573.    Van  Allen  v.  The  Assessors  1865 

5  Wall.  761.    The  New  York  Indians  1866 

h  7  Wall.  26.    Bank  v.  The  Supervisors  1868 

92  U.  S.  259.    Henderson  v.  New  York 1875 

94  U.  S.  238.    Inman  Steamship  Co.  v.  Tinker 1876 

107  U.  S.  59.    People  v.  Compagnie  Transatlantique 1882 

191  U.  S.  17.    The  Robert  W.  Parsons  1903 

198  U.  S.  45.    Lochner  v.  New  York 1904 

212  U.  S.  19.     Vv^illcox  v.  Gas  Co 1908 

Total  16 

North  Carolina — 

13  Wall.  264.    Wilmington  Ry.  v.  Reid 1871 

91  U.  S.  3.    Wilmington  &  Weldon  R.  R.  v.  King 1875 

d  96  U.  S.  595.    Edwards  v.  Kearzey 1877 

a  187  U.  S.  622.    Caldwell  v.  North  Carolina 1902 

202  U.  S.  543.     McNeil  v.  Southern  Ry.  Co 1906 

h  222  U.  S.  424.    Southern  Railroad  Co.  v.  Reid 1911 

Total  6 

North  Dakota— 

215  U.  S.  515.    Flaherty  v.  Hansan  1909 

Total  i 

Ohio— 

h  9  Wheaton  738.    Osborn  v.  The  U.  S.  Bank 1824 

3  Howard  720.    Neil  v.  Ohio  1845 

16  Howard  369.     State  Bank  v.  Knoop  1853 

18  Howard  331.    Dodge  v.  Woolsey 1855 

127  U.  S.  411.    Ratterman  v.  Western  Union  Tel.  Co 1887 

a  172  U.  S.  269.    Norwood  v.  Baker  1898 

173  U.  S.  276.    Ohio  v.  Thomas 1898 

a  194  U.  S.  517.    Cleveland  v.  Cleveland  Ry.  Co 1903 

a  201  U.  S.  529.    Cleveland  v.  Cleveland  R.  R 1905 

Total  9 

Oklahoma — 

221  U.  S.  229.    Oklahoma  v.  Kansas  Gas  Co 1910 

223  U.  S.  298.    Oklahoma  v.  Express  Co 1911 

Total  2 

Oregon — 

140  U.  S.  i.    Pennoyer  v.  McConnaughy 1890 

212  U.  S.  315.    Nielson  v.  Oregon  1908 

Total  .  2 


148 


APPENDIX  IV 


[242 


Pennsylvania — 

5  Cranch  1 15.    United  States  v.  Peters  1809 

6  Wheaton  131.    Bank  of  Pa.  v.  Smith 1821 

16  Peters  435.    Dobbins  v.  Com'rs  of  Erie  County 1842 

16  Peters  539.    Prigg  v.  Pennsylvania 1842 

3  Howard  151.     Searight  v.  Stokes 1845 

7  Wall.  262.     Railroad  Co.  v.  Jackson  1868 

15  Wall.  232.    State  Freight  Tax  Case 1872 

15  Wall.  300.     State  Tax  on  Foreign-Held  Bonds  1872 

97  U.  S.  566.    Cook  v.  Pennsylvania 1878 

114  U.  S.  196.     Gloucester  Ferry  Co.  v.  Pennsylvania 1884 

122  U.  S.  326.     Steamship  Co.  v.  Pennsylvania 1886 

136  U.  S.  114.    Norfolk  &  Western  Ry.  Co.  v.  Pennsylvania.  1889 

a  153  U.  S.  289.    Brennan  v.  Titusville 1893 

153  U.  S.  628     Erie  Railroad  Co.  v,  Pennsylvania 1893 

171  U.  S.  i.     Schollenberger  v.  Pennsylvania  1897 

a  192  U.  S.  64.    Postal  Telegraph  v.  Taylor  1903 

a  203  U.  S.  507.    Rearick  v.  Pennsylvania 1906 

Total  17 

Rhode  Island — 
South  Carolina — 

a  2  Peters  449.    Weston  v.  City  of  Charleston  1829 

19  Wall.  i.    Barings  v.  Dabney  1873 

a  96  U.  S.  432.    Murray  v.  Charleston 1877 

165  U.  S.  58.    Scott  v.  Donald  1896 

Total  4 

South  Dakota — 
Tennessee — 

8  Wall.  44.    Furman  v.  Nichol  1868 

95  U.  S.  679.    Farrington  v.  Tennessee 1877 

97  U.  S.  454.    Keith  v.  Clark  1878 

117  U.  S.  34.    Pickard  v.  Pullman  Southern  Car  Co 1885 

117  U.  S.  151.    Van  Brocklin  v.  Tennessee 1885 

120  U.  S.  489.    Robbins  v.  Shelby  Co.  Taxing  District -1886 

153  U.  S.  486.    Mobile  &  Ohio  Ry.  Co.  v.  Tennessee 1893 

161  U.  S.  134.    Bank  of  Commerce  v.  Tennessee 1895 

172  U.  S.  239.    Blake  v.  McClung 1898 

185  U.  S.  27.    Stockard  v.  Morgan 1901 

191  U.  S.  171.    Allen  v.  Pullman  Co 1903 

208  U.  S.  113.    Darnell  v.  Memphis I9°7 

Total  .  .  12 


243] 


APPENDIX  IV 


I49 


Texas— 

19  Wall.  581.    Peete  v.  Morgan  1873 

102  U.  S.  123.    Tiernan  v.  Rinker 1870 

105  U.  S.  460.    Telegraph  Co.  v.  Texas 1881 

128  U.  S.  129.    Asher  v.  Texas 1888 

h  158  U.  S.  98.    Gulf  Colorado  &  Santa  Fe  Ry.  Co.  v.  Hefley. . .  1894 

165  U.  S.  150.    Gulf  Colorado  &  Santa  Fe  .Ry.  Co.  v.  Ellis. . .  1896 

b  170  U.  S.  243.    Houston  &  Texas  Central  Ry.  v.  Texas 1897 

177  U.  S.  66.    Houston  &  Texas  Central  R.  R.  v.  Texas  ....  1898 

201  U.  S.  321.    Railroad  Co.  v.  Mayes  1905 

210  U.  S.  217.    Railroad  Co.  v.  Texas  1907 

Total  10 

Utah— 

e  166  U.  S.  464.    American  Publishing  Co.  v.  Fisher ; . .  1896 

b  170  U.  S.  343.    Thompson  v.  Utah  1897 

Total  2 

Vermont — 

8  Wheaton  464.    Society,  etc.  v.  New  Haven 1823 

Total i 

Virginia — 

9  Cranch  43.    Terrett  v.  Taylor 1815 

102  U.  S.  672.    Hartman  v.  Greennow 1880 

103  U.  S.  344.    Webber  v.  Virginia 1880 

114  U.  S.  270.    Virginia  Coupon  Cases 1884 

115  U,  S.  566.    Effinger  v.  Kenny 1885 

116  U.  S.  572.    iRoyall  v.  Virginia 1885 

135  U.  S.  662.     McGahey  v,  Virginia 1889 

138  U.  S.  78.    Brimmer  v.  Rebman  1890 

141  U.  S.  62.    Voight  v.  Wright 1890 

Total  9 

Washington — 

a  172  U.  S.  i.    Walla  Walla  City  v.  Water  Co 1889 

189  U.  S.  185.    The  Roanoke 1902 

eh  222  U.  S.  334.    Berryman  v.  Whitmore  College 1911 

h  222  U.  S.  370.    Railroad  Co.  v.  Washington 191 1 

Total  4 

West  Virginia — 

16  Wall.  234.    Pierce  v.  Carskadon 1872 

100  U.  S.  303.    Strauder  v.  West  Virginia 1879 

106  U.  S.  487.    Parkersburg  v.  Brown 1882 

Total  3 


150  APPENDIX  IV  [244 

Wisconsin — 

20  Wall.  445.    Insurance  Co.  v.  Morse 1874 

154  U.  S.  626.    Morrill  v.  Wisconsin  1876 

103  U.  S.  5-    Hall  v.  Wisconsin 1880 

Total  3 

Wyoming — 

District  of  Columbia — 

129  U.  S.  141.    Stoutenburgh  v.  Hennick 1888 

Total  i 

a  Municipal  ordinance,  b  State  constitution,  c  Statute  and  city  ordi- 
nance, d  Constitution  and  statute,  e  Territorial  statute,  g  State  con- 
stitution and  municipal  ordinance,  h  In  conflict  with  United  States 
statute  which  Congress  had  constitutional  authority  to  enact. 


APPENDIX  V 

Cases  in  which  State  Constitutions  and  Statutes,  Territorial 
Statutes,  and  Municipal  Ordinances  were  Nullified  by  the 
United  States  Supreme  Court,  Classified  according  to  the  Con- 
stitutional Clauses  with  which  the  Legislative  Enactments 
Conflicted.1 


"No  state  shall  pass  any  law  .  . 
tracts" 


impairing  the  obligation  of  con- 


2  6  Cranch  87.    Fletcher  v.  Peck  Ga.  1810 

7  Cranch  164.    New  Jersey  v.  Wilson N.  J.  1812 

4  Wheaton  122.    Sturges  v.  Crowninshield N.  Y.  1819 

4  Wheaton  209.    McMillan  v.  McNeill La.  1819 

4  Wheaton  518.    Dartmouth  College  v.  Woodward N.  H.  1819 

6  Wheaton  131.     Bank  v.  Smith  Pa.  1821 

8  Wheaton  i.    Green  v.  Biddle Ky.  1823 

1  Howard  311.    Bronson  v.  Kinzie 111.  1843 

2  Howard  608.    McCracken  v.  Hayward 111.  1844 

3  Howard  133.    Gordon  v.  The  Tax  Court Md.  1845 

6  Howard  301.     Planters  Bank  v.  Sharp  Miss.  1848 

10  Howard  190.    Woodruff  v.  Trapnall  Ark.  1850 

14  Howard  268.    Vincennes  University  v.  Indiana Ind.  1852 

15  Howard  304.     Curran  v.  Arkansas  Ark.  1853 

16  Howard  369.    State  Bank  v.  Knoop  Ohio  1853 

18  Howard  331.    Dodge  v.  Woolsey Ohio  1855 

24  Howard  461.    Howard  v.  Bugbee Ala.  1860 

2  Wall.  10.    Hawthorne  v.  Calef Me.  1862 

3  Wall.  51.    The  Binghamton  Bridge N.  Y.  1865 

4  Wall.  143-    McGee  v.  Mathis  Ark.  1866 

4  Wall.  535.    Van  Hoffman  v.  City  of  Quincy 111.  1866 

8  Wall.  44.    Furman  v.  Nichol  Tenn.  1868 

1  In  some  instances  a  statute  conflicted  with  more  than  one  constitu- 
tional clause.    In  such  instances  the  case  is  listed  under  the  clause  on 
which  the  court  based  the  principal  part  of  its  argument. 

2  Also  ex  post  facto  and  general  principles. 

245]  151 


152 


APPENDIX  V 


[246 


8  Wall.  430.    Home  of  Friendless  v.  'Rouse Mo.  1869 

8  Wall.  439.    Washington  University  v.  Rouse Mo.  1869 

13  Wall.  264.    Wilmington  Ry.  v.  Reid N.  C.  1871 

13  Wall.  646.     White  v.  Hart Ga.  1871 

13  Wall.  654.    Osborn  v.  Nichol  Ark.  1871 

14  Wall.  661.    Delmas  v.  Insurance  Co La.  1871 

15  Wall.  300.    State  Tax  on  Foreign-Held  Bonds Pa.  1872 

15  Wall.  610.     Gunn  v.  Barry Ga.  1872 

16  Wall.  244.     Humphrey  v.  Pegues  Ga.  1872 

1 6  Wall.  314.     Walker  v.  Whitehead   Ga.  1872 

19  Wall.  i.     Barings  v.  Dabney S.  C.  1873 

20  Wall.  36.    Pacific  Railway  Co.  v.  McGuire Mo.  1873 

91  U.  S.  3.    Wilmington  &  Weldon  R.  R.  v.  King N.  C.  1875 

95  U.  S.  104.    New  Jersey  v.  Yard  N.  J.  1877 

95  U.  S.  679.  Farrington  v.  Tennessee Tenn.  1877 

96  U.  S.  432.    Murray  v.  Charleston  S.  C.  1877 

96  U.  S.  595.    Edwards  v.  Kearzey N.  C.  1877 

97  U.  S.  454.    Keith  v.  Clark Tenn.  1878 

99  U.  S.  309.    University  v.  People  111.  1878 

102  U.  S.  672.    Hartman  v.  Greennow  Va.  1880 

103  U.  S.  5.    Hall  v.  Wisconsin Wis.  1880 

103  U.  S.  358.    Wolff  v.  New  Orleans La.  1880 

105  U.  S.  278.    Louisiana  v.  Pilsbury La.  1881 

105  U.  S.  362.    Asylum  v.  New  Orleans La.  1881 

105  U.  S.  733.    Rails  County  Court  v.  United  States  . .  Mo.  1881 

in  U.  S.  716.    Nelson  v.  St.  Martin's  Parish La.  1883 

114  U.  S.  270.    Virginia  Coupon  Cases Va.  1884 

115  U.  S.  566.    Effinger  v.  Kenny Va.  1885 

115  U.  S.  650.    New  Orleans  Gas  Co.  v.  Louisiana  Light 

Company     La.  1885 

115  U.  S.  674.    New  Orleans  Water  Co.  v.  Rivers La.  1885 

115  U.  S.  683.    Louisville  Gas  Co.  v.  Citizens  Gas  Co..  .Ky.  1885 

116  U.  S.  131.    Fisk  v.  Jefferson  Police  Jury La.  1885 

n6U.  8.289.    Mobile  v.  Watson Ala.  1885 

116  U.  S.  572.     Royall  v.  Virginia Va.  1885 

122  U.  S.  284.     Seibert  v.  Lewis  Mo.  1886 

135  U.  S.  662.    McGahey  v.  Virginia  Va.  1889 

140  U.  S.  i.    Pennoyer  v.  McConnaughy  Ore.  1890 

153  U.  S.  486.    Mobile  &  Ohio  Ry.  Co.  v.  Tennessee. .  .Tenn.  1893 

153  U.  S.  628.    Erie  Railroad  Co.  v.  Pennsylvania Pa.  1893 

161  U.  S.  134.    Bank  of  Commerce  v.  Tennessee Tenn.  1895 

163  U.  S.  118.    Barnitz  v.  Bsverly Kans.  1895 

170  U.  S.  243.    Houston  &  Texas  Central  Ry.  v.  Texas. Tex.  1897 

172  U.  S.  i.     Walla  Walla  v.  Walla  Walla  Water  Co..  .Wash.  1898 


247]  APPENDIX  V  153 

177  U.  S.  66.    Railroad  Co.  v.  Texas Tex.  1899 

177  U.  S.  558.    Los  Angeles  v.  Los  Angeles  Water  Co..€al.  1899 

179  U.  S.  223.    Stearns  v.  Minnesota Minn.  1900 

184  U.  S.  368.    Detroit  v.  Railway  Co Mich.  1901 

194  U.  S.  517.    Cleveland  v.  Cleveland  Ry.  Co Ohio  1903 

195  U.  S.  i.    Bradley  v.  Lightcap  111.  1903 

201  U.  S.  529.    Cleveland  v.  Railway  Co Ohio  1905 

201  U.  S.  543.    Powers  v.  Railroad  Co Mich.  1905 

202  U.  S.  453.    Vicksburg  v.  Waterworks  Co Miss.  1905 

204  U.  S.  103.    American  Co.  v.  Colorado Col.  1906 

206  U.  S.  496.    Vicksburg  v.  Vicksburg  Water  Co Miss.  1906 

215  U.  S.  170.    Hubert  v.  New  Orleans La.  1909 

215  U.  S.  417.     Minneapolis  v.  Minneapolis  Ry Minn.  1909 

Total   78 

Interstate  and  Foreign  Commerce  Clause. 

9  Wheaton  I.     Gibbons  v.  Ogden  N.  Y.  1824 

1 12  Wheaton  419.    Brown  v.  Maryland  Md.  1827 

7  Howard  283.     Passenger  Cases   N.  Y.  &  Mass.  1849 

22  Howard  227.     Sinnot  v.  Davenport Ala.  1859 

6  Wall.  31.    Steamship  Co.  v.  Port  Wardens La.  1867 

15  Wall.  232.    State  Freight  Tax  Case  Pa.  1872 

91  U.  S.  275.    Welton  v.  Missouri  Mo.  1875 

92  U.  S.  259.    Henderson  v.  New  York N.  Y.  1875 

92  U.  S.  275.    Chy  Lung  v.  Freeman Cal.  1875 

94  U.  S.  246.    Foster  v.  Master  of  New  Orleans La.  1876 

154  U.  S.  626.     Morrill  v.  Wisconsin  Wis.  1876 

95  U.  S.  465.    Railroad  Co.  v.  Husen  Mo.  1877 

95  U.  S.  485.    Hall  v.  DeCuir La.  1877 

96  U.  S.  i.    Pensacola  Telegraph  Co.  v.  Western  Union 

Telegraph  Co Fla.  1877 

97  U.  S.  566.    Cook  v.  Pennsylvania Pa.  1878 

loo  U.  S.  434.     Guy  v.  Baltimore  Md.  1879 

102  U.  S.  123.    Tiernan  v.  Rinker  Tex.  1880 

103  U.  S.  344-    Webber  v.  Virginia Va.  1880 

105  U.  S.  460.    Telegraph  Co.  v.  Texas Tex.  1881 

107  U.  S.  59.    People  v.  Compagnie  Transatlantique N.  Y.  1882 

112  U.  S.  69.     Moran  v.  New  Orleans  La.  1884 

114  U.  S.  196.    Gloucester  Ferry  Co.  v.  Pennsylvania  .  .Pa.  1884 

116  U.  S.  446.    Walling  v.  Michigan Mich.  1885 

117  U.  S.  34.    Pickard  v.  Pullman  Car  Co Tenn.  1885 

118  U.  S.  90.     Spraigue  v.  Thompson  Ga.  1885 

ii8U.  8.557.     Railroad  Co.  v.  Illinois 111.  1886 

1  Listed  also  under  import  and  export  clause. 


154  APPENDIX  V  [24g 

120  U.  S.  489.    Robbins  v.  Taxing  District Tenn.  1886 

120  U.  S.  502.     Corson  v.  Maryland  Md.  1886 

121  U.  S.  230.    Fargo  v.  Michigan Mich.  1886 

122  U.  S.  326.    Steamship  Co.  v.  Pennsylvania Pa.  1886 

122  U.  S.  347.    Telegraph  Co.  v.  Pendleton Ind.  1886 

125  U.  S.  465.    Bowman  v.  Chicago  &  North.  Ry.  Co..  .Iowa  1887 

125  U.  S.  530.    Western  Union  Tel.  Co.  v.  Mass Mass.  1887 

127  U.  S.  411.    Ratterman  v.  Western  Union  Tel.  Co... Ohio  1887 

127  U.  S.  640.    Leloup  v.  Port  of  Mobile Ala.  1887 

128  U.  S.  129.    Asher  v.  Texas  Tex.  1888 

129  U.  S.  141.     Stoutenburgh  v.  Hennick  D.  C.  1888 

132  U.  S.  472.    Western  Union  Tel.  Co.  v.  Alabama. .  .Ala.  1889 

135  U.  S.  100.    Leisy  v.  Hardin Iowa  1889 

135  U.  S.  161.    Lyng  v.  Michigan  Mich.  1889 

136  U.  S.  104.    McCall  v.  California  Cal.  1889 

136  U.  S.  114.    Railroad  Co.  v.  Pennsylvania Pa.  1889 

136  U.  S.  313.    Minnesota  v.  Barber Minn.  1889 

138  U.  S.  78.     Brimmer  v.  Rebman  Va.  1890 

141  U.  S.  47.     Crutcher  v.  Kentucky  Ky.  1890 

141  U.  S.  62.    Voigt  v.  Wright Va.  1890 

147  U.  S.  396.    Harman  v.  Chicago  III.  1892 

153  U.  S.  289.    Brennan  v.  Titusville Pa.  1893 

154  U.  S.  204.     Covington  &  Cincinnati  Bridge  Co.  v. 
Kentucky    Ky.  1893 

158  U.  S.  98.     Railroad  Case  v.  Hefley Tex.  1894 

163  U.  S.  142.     Illinois  Central  Ry.  v.  Illinois  111.  1895 

165  U.  S.  58.    Scott  v.  Donald  S.  C.  1896 

171  U.  S.  i.    Schollenberger  v.  Pennsylvania Pa.  1897 

171  U.  S.  30.    Collins  v.  New  Hampshire N.  H.  1897 

177  U.  S.  514.    Railroad  Co.  v.  Illinois  111.  1899 

184  U.  S.  27.    Railroad  Co.  v.  Eubank  Ky.  1901 

185  U.  ,S.  27.     Stockard  v.  Morgan   Tenn.  1901 

187  U.  S.  622.    Caldwell  v.  North  Carolina N.  C.  1902 

191  U.  S.  171.    Allen  v.  Pullman  Co Tenn.  1903 

192  U.  S.  64.     Postal  Telegraph  Co.  v.  Taylor  Pa.  1904 

196  U.  S.  194.    Central  Ry.  of  Georgia  v.  Murphey Ga.  1904 

201  U.  S.  321.    Railroad  Co.  v.  Mayes  Tex.  1905 

202  U.  S.  543.    McNeil  v.  Southern  <R.  iR.  Co N.  C.  1906 

203  U.  S.  507.    Rearick  v.  Pennsylvania Pa.  1906 

206  U.  S.  129.    Express  Co.  v.  Kentucky  Ky.  1906 

208  U.  S.  113.    Darnell  v.  Memphis  Tenn.  1907 

210  U.  S.  217.     Railroad  Co.  v.  Texas  Tex.  1007 

214  U.  S.  218.     Adams  Express  Co.  v.  Kentucky  Ky.  1909 

216  U.  S.  i.     Telegraph  Co.  v.  Kansas   Kans.  1909 


249]  APPENDIX  V  I55 

216  U.  S.  146.    Ludwig  v.  Telegraph  Co Ark.  1909 

217  U.  S.  91.    Text  Book  Co.  v.  Pigg  Kans.  1909 

217  U.  S.  136.     Railroad  Co.  v.  Arkansas  Ark.  1909 

218  U.  S.  124.     Dozier  v.  Alabama  Ala.  1909 

221  U.  S.  229.    Oklahoma  v.  Kansas  Gas  Co Okla.  1910 

222  U.  S.  370.    Railroad  Co.  v.  Washington  Wash.  1911 

222  U.  S.  424.    'Railroad  Co.  v.  Reid  N.  C.  1911 

223  U.  S.  70.     Railroad  Co.  v.  Cook  County  Ky.  1911 

223  U.  S.  280.    Railroad  Co.  v.  O'Connor Col.  1911 

223  U.  S.  298,     Oklahoma  v.  Express  Co Okla.  1911 

Total  79 

General — No  specific  clause  indicated,  or  miscellaneous. 

5  Cranch  115.    United  States  v.  Peters  Pa.  1809 

9  Cranch  43.     Terrett  v.  Taylor   Va.  1815 

4  Wheaton  316.    McCulloch  v.  Maryland Md.  1819 

8  Wheaton  464.    Society,  etc.  v.  New  Haven Vt.  1823 

9  Wheaton  738.    Osborn  v.  The  United  States  Bank  . .  Ohio  1824 
12  Wheaton  213.    Ogden  v.  Saunders  N.  Y.  1827 

2  Peters  449.     Weston  v.  Charleston  S.  C.  1829 

6  Peters  635.    Boyle  v.  Zacharie  Md.  1832 

16  Peters  435.    Dobbins  v.  Commissioners Pa.  1842 

3  Howard  151.    Searight  v.  Stokes Pa.  1845 

3  Howard  720.    Neil  v.  Ohio  Ohio  1845 

12  Howard  293.    Achison  v.  Huddleson  Md.  1851 

17  Howard  596.    Hays  v.  Pacific  Mail  Co Cal.  1854 

20  Howard  558.    Irvine  v.  Marshall Minn.  1857 

2  Black  620.    Bank  of  Commerce  v.  New  York  City  ..N.  Y.  1862 

2  Wall.  200.    Bank  Tax  Case  N.  Y.  1864 

3  Wall.  573.    Van  Allen  v.  Assessors N.  Y.  1865 

4  Wall.  411.    The  Moses  Taylor  Cal.  1866 

4  Wall.  459.    Bradley  v.  The  People  111.  1866 

4  Wall.  555.    The  Hine  v.  Trevor Iowa  1866 

6  Wall.    35-    Crandall  v.  Nevada  Nev.  1867 

7  Wall.  26.    Bank  v.  Supervisors N.  Y. 

7  Wall.  262.    Railroad  Co.  v.  Jackson  Pa.  i858 

7  Wall.  624.     The  Belfast   Ala.  1868 

ii  Wall.  610.    Dunphy  v.  Kleinsmith  Mont.  1870 

13  Wall.  92.    Gibson  v.  Chouteau Mo.  1871 

20  Wall.  445.    Insurance  Co.  v.  Morse Wis.  1874 

20  Wall.  655.    Loan  Association  v.  Topeka Kans.  1874 

_io<5  U.  S.  487.     Parkersburg  v.  Brown  W.  Va.  1882 

113  U.  S.  i.    Cole  v.  LaGrange  Mo.  1884 

117  U.  S.  151.    Van  Brocklin  z/.  Tenn Tenn.  1885 

121  U.  S.  186.    Barren  v.  Burnsides  .  ..Iowa  1886 


156 


APPENDIX  V 


, 

\A27  U.  S.  I.    California  v.  Central  Pacific  R.  R.  Co.  ..Cal.  1887 

173  U.  S.  276.     Ohio  v.  Thomas  .....................  Ohio  1898 

189  U.  S.  185.    The  Roanoke  ........................  Wash.  1902 

191  U.  S.  17.    The  Robert  W.  Parsons  ...............  N.  Y.  1903 

205  U.  S.  503.    Savings  Bank  v.  Des  Moines  .........  Iowa  1906 

212  U.  S.  315.     Nielson  v.  Oregon  ...................  Ore.  1908 

215  U.  S.  515.     Flaherty  v.  Hanson  ..................  N.  D.  1909 

218  U.  S.  135.    Herndon  v.  Railroad  Co  ..............  Mo.  1909 

222  U.  S   334.     Berryman  v.  Whitman  College  ........  Wash.  1911 

Total   ..........  41 

No  state  shall  "  deprive  any  person  of  life,  liberty,  or  property,  with- 
out due  process  of  law." 

1  134  U.  S.  418.     Railroad  Co.  v.  Minnesota  ............  Minn.  1889 

164  U.  S.  403.    Railroad  Co.  v.  Nebraska  ............  Nebr.  1896 

Q$     [y,^.     2  i6sU.  S.  150.    Railroad  Co.  v.  Ellis  .................  .Tex.  1896 

165  J.  S.  578.    Allgeyer  v.  Louisiana  ................  La.  1896 

*  169  U.  S.  466.     Smyth  v.  Ames  ......................  Nebr.  1897 

•*  172  U.  S.  269.    Norwood  v.  Baker  ....................  Ohio  1898 

,  173  U..  S.  193.    Dewey  v.  Des  Moines  ................  Iowa  1898 

"  173  U.  S.  684.     Railroad  Co.  v.  Smith  ................  Mich.  1898 

179  U.  ,S.  302.    Railroad  Co.  v.  St.  Louis  Co  ...........  Minn.  1900 

1  88  U.  S.  385.    Ferry  Co.  v.  Kentucky  ...............  Ky.  1902 

2  195  U.  S.  223.    Dobbins  v.  Los  Angeles  ..............  Cal.  1904 

*  198  U.  S.  45.     Lochner  v.  New  York  ................  N.  Y.  1904 

199  U.  S.  194.    Union  Transfer  Co.  v.  Kentucky  ......  Ky.  1904 

207  U.  S.  127.    Railroad  Co.  v.  Wright  ...............  Ga.  1907 

J  209  U.  S.  123.    Ex  parte  Young  .................  .....  Minn.  1907 

**  V*  210  U.  S.  217.    Railroad  Co.  v.  Texas  ................  Tex.  1907 

1  212  U.  S.  19.    Willcox  v.  Gas  Co  .....................  N.  Y.  1908 

212  U.  S.  132.    Railroad  Co.  v.  Stockyards  ............  Ky.  1908 

217  U.  S.  196.    Railroad  Co.  v.  Nebraska  ............  Nebr.  1910 

Total  ..........  19 

Equal  protection  clause. 

100  U.  S.  303.    Strauder  v.  West  Virginia  ............  W.  Va.  1879 

118  U.  S.  356.    Yick  Wo  v.  Hopkins  .................  Cal.  1885 

183  U.  S.  79.    Cotting  v.  Stock  Yards  .................  Kan.  1901 

184  U.  S.  540.    Connolly  v.  Sewer  Pipe  Co  ...........  111.  1901 

216  U.  S.  400.    Railroad  Co.  v.  Greene  ...............  Ala.  1909 

Total   ..........     5 

1  Equal   protection   also   mentioned  but   case  based   mainly   on  due 
process. 

2  Decision  based  on  I4th  Amendment. 


251] 


APPENDIX  V 


Thirteenth  Amendment. 
219  U.  S.  219.     Bailey  v.  Alabama  ....................  Ala.      1910 

Total  ..........     i 

Bills  of  Attainder. 

1  4  Wall.  277.     Cummings  v.  Missouri  .................  Mo.        1865 

16  Wall.  234.     Pierce  v.  Carskadon  ..................  W.  Va.  1872 

Total  ..........     2 

"  Full  tfaith  and  credit  shall  be  given  in  each  state  to  the  public  acts, 
records,  ynd  judicial  proceedings  of  every  other  state" 

5  Wall.  290.     Christmas  v.  Russell  ...................  Miss.     1866 

Total   ..........     i 

"  In  suits  at  common  law,  where  the  value  in  controversy  shall  ex- 
ceed twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved." 

2  ii  Howard  437.    Webster  v.  Reid  ....................  Iowa     1850 

2  166  U.  S.  464.     Publishing  Co.  v.  Fisher  ..............  Utah     1896 

Total   ..........     2 

"  No  state  .  .  .  shall  pass  any  .  .  .  ex  post  facto  law" 

3  4  Wall.  277.    Cummings  v.  Missouri  ..................  Mo.  1866 

107  U.  S.  221.    Kring  v.  Missouri  ....................  Mo.  1882 

134  U.  S.  1  60.    Ex  parte  Medley  .....................  Col.  1889 

170  U.  S.  343.    Thompson  v.  Utah  ....................  Utah  1897 

Total  ..........     4 

Infringement  on  the  treaty-making  power  of  the  United  States. 

6  Peters  515.    Worcester  v.  Georgia  ..................  Ga.  1832 

5  Wall.  737.    The  Kansas  Indians  ....................  Kan.  1866 

5  Wall.  761.    The  New  York  Indians  ................  N.  Y.  1866 

Total   ..........     3 

"No  person  held  to  service  or  labor  in  one  state,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence   of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor;  but  shall 
be  delivered  up,  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due" 

16  Peters  539.     Prigg  v.  Pennsylvania  ...............  Pa.        1842 

Total   ..........     i 

1  Also  listed  under  ex  post  facto  clause. 

z  Territorial  statutes. 

3  Also  listed  under  bill  of  attainder  clause. 


158 


APPENDIX  V 


[252 


"No  state  shall,  without  the  consent  of  Congress,  lay  any  duty  of 
tonnage." 

State  Tonnage  Tax  Cases  Ala.      1870 

Peete  v.  Morgan  Tex.      1873 


12  Wall.  204. 

19  Wall.  581. 

20  Wall.  577. 
94  U.  S.  238. 


Cannon  v.  New  Orleans La.  1874 

Inman  Steamship  Co.  v.  Tinker N.  Y.  1876 

Total  4 

"  The  citizens  of  each  state  shall  be  entitled  to  all  privileges  and  im- 
munities of  citizens  in  the  several  states" 

12  Wall.  418.     Ward  v.  Maryland  Md.  1870 

172  U.  S.  239.     Blake  v.  McClung  , Tenn.  1898 

Total  2 

"No  state  shall,  without  the  consent  of  Congress,  lay  any  imposts 
or  duties  on  imports  or  exports"  etc. 

1  12  Wheaton  419.     Brown  v.  Maryland  Md.  1827 

24  Howard  169.     Almy  v.  California Cal.  1860 

Total  2 

"No  state  shall  .  .  .  emit  bills  of  credit." 

4  Peters  410.    Craig  v.  Missouri  Mo.  1830 

Total  .  i 


STATISTICAL   SUMMARY 


Contract 
Clause 

Interstate 
and  Foreign 
Commerce 

General 

I4th 
Amendment 

All 
others 

Total 

1790-1800    . 
1800-1810    . 

i 

•• 

i 

•• 

2 

1810-1820    • 

4 

2 

.  . 

6 

1820-1830    • 

2 

2 

4 

2 

10 

1830-1840    • 

.. 

I 

I 

2 

1840-1850    • 

5 

I 

3 

2 

11 

1850-1860    .           s 

I 

3 

I 

10 

1860-1870    . 

7 

I 

II 

7 

26 

1870-1880    . 

20 

13 

3 

i 

4 

41 

1880-1890    • 

15 

28 

5 

2 

2 

52 

1890-1900    • 

9 

9 

i 

8 

3 

30 

1900-1910    • 

10 

19 

6 

13 

i 

49 

1910-1911     • 

5 

i 

6 

78 

79 

4. 

24 

23 

245 

1  Also  listed  under  interstate  commerce  clause. 


VITA 

The  author  of  this  monograph,  Elaine  Free  Moore, 
was  born  in  1879  at  Republic,  Ohio.  He  was  graduated 
from  the  La  Bette  County  (Kansas)  High  School  in 
1897.  During  the  year  1895-96  he  taught  in  the  public 
schools  of  Kansas.  In  1901  he  received  the  degree  of 
A.  B.  at  the  University  of  Kansas  and  was  elected  to 
Phi  Beta  Kappa.  From  1901-1906  he  was  in  the  employ 
of  the  Bureau  of  Education,  Philippine  Islands,  and  was 
Division  Superintendent  of  Schools  1905-1906.  From 
June  to  August,  1907  he  was  a  graduate  student  at  the 
University  of  Chicago.  He  was  scholar  in  Political 
Science,  University  of  Illinois,  1907-08  and  received  the 
degree  of  A.  M.  in  1908;  George  William  Curtis  Fellow, 
Columbia  University,  1908-09.  During  1909-10  he  was 
Instructor  in  Government,  University  of  Michigan  and 
has  been  Assistant  Professor  of  Political  Science,  George 
Washington  University,  since  1910.  In  1909  he  pub- 
lished "Cumulative  Voting  in  Illinois.'* 

While  at  Columbia  University  he  studied  Public  Law, 
Constitutional  History,  and  Statistics  under  Professors 
Goodnow,  Burgess,  and  H.  L.  Moore.  He  attended  the 
seminar  in  Public  Law  conducted  by  Professor  Goodnow 
and  the  seminar  in  Economics  conducted  by  Professor 
Seligman. 

159 


orocxion,  Calif. 


